DeFacto Custodian (February 2020)

Material for South Carolina Bar “Third-Party Custody” lecture series

In 2008, South Carolina enacted a statute, S.C. Code § 63-15-60, creating “de facto custodians.  Per that statute, the family court can award custody or visitation to persons who meets the criteria of a “de facto custodian,” which the code defines as:

a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

(1) has resided with the person for a period of six months or more if the child is under three years of age; or
(2) has resided with the person for a period of one year or more if the child is three years of age or older.

Such de facto custodians can be awarded custody or visitation if the family court “finds by clear and convincing evidence that the child’s natural parents are unfit or that other compelling circumstances exist.”

This “de facto custodian” statute allows the family court to grant custody or visitation to persons who have spent significant time raising the child at issue. This code section can often be applied by relatives of family friends who have raised a child when the parents were absent. Thus a grandmother who raised her grandchild while her daughter was incarcerated, serving in the military, or otherwise too preoccupied to raise her own child, can seek court-ordered visitation, or even custody, without having to meet the requirements of the grandparent visitation statute, S.C. Code § 63-3-530 (A)(33).  Further, folks who cared for a child for the time periods referenced in the statute can seek visitation even if they would not otherwise have standing to do so.

De Facto Custodian is sometimes confused with psychological parent.  I sometime hear from attorneys who lose visitation or custody claims because they pled psychological parent but fail to allege De Facto Custodian.  While someone can invoke both doctrines to obtain custody or visitation, they are quite different.  In a De Facto Custodian situation, the child does not have to see the custodian as an actual parental figure, but simply as a primary care provider. Nor does the De Facto Custodian need to “replace” the role of a biological parent. In contract, a psychological parent figuratively replaces the role of an absent biological parent.  In my experience, there are many more De Facto Custodians than psychological parents.  Do not confuse the two.

When trying a De Facto Custodian case, do not be surprised if the defending party seeks to bifurcate the trial, with the issue of whether someone is a De Facto Custodian being tried before the issue of visitation and custody.  The language of the statute suggests this is the proper procedure, as, under Subsection C of the statute, a finding of De Facto Custodian is a prerequisite for awarding custody or visitation.  Further, note that the evidentiary burden for finding a De Facto Custodian is “clear and convincing,” rather than the typical preponderance.  For the defending party the advantage of seeking bifurcation is the potential to foreclose any custody or visitation award if the moving party cannot meet this burden.  However, if the moving party meets this burden, it enters the custody/visitation phase of the trial having already presented strong evidence of a parental-like relationship.

As of January 24, 2020, no published opinion interprets that statute. There are numerous recurring issues in South Carolina family law that ultimately will need to be resolved by our appellate courts. One of the more interesting ones–because it is both relatively common and extremely consequential–is the interaction of the De Facto Custodian statute and the Moore factors.

The Moore factors were created by the 1989 Supreme Court case of Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989), which set up a four-criteria test for deciding when to return children to their parents when a non-parent had custody. Those factors were:

1) The parent must prove that he is a fit parent, able to properly care for the child and provide a good home.

2) The amount of contact, in the form of visits, financial support or both, which the parent had with the child while it was in the care of a third party.

3) The circumstances under which temporary relinquishment occurred.

4) The degree of attachment between the child and the temporary custodian.

Moore did not establish the supremacy of any one factor. In practice, the first factor–parental fitness–was often controlling. When the parent was unfit this wasn’t an issue: the family courts were obviously not going to return custody to an unfit parent. However, when a parent was fit, the other three factors–especially the fourth one–would seem to caution the courts from returning custody when the child had a strong and enduring bond to the third-party. In practice, family court judges were overruled when they failed to return children to fit parents.

Many of the third-parties who have physical possession of a child meet the criteria of De Facto Custodian. The De Facto Custodian statute would appear to give such parties greater claim (than Moore does) to keep custody. Frequently, in custody cases between parents and non-parents, the non-parents will be much more stable and closely bonded to the child–but the parent will be fit. Under the Moore factors, custody would likely–if gradually–be returned to the parent. Since the De Facto Custodian statute gives such non-parents the right to seek custody, it seems less likely the court should return children to parents in such situations.

No appellate opinion resolves this issue. An unpublished 2017 Court of Appeals opinion in Lester v. Sanchez originally held that a De Facto Custodians “are not on equal footing with biological parents in a custody dispute.” However that opinion was then refiled to remove such language by removing the finding that Sanchez was a De Facto Custodian.

How to balance the rights of children to stability in their care provider relationships and the right of fit parents to raise their children as they see fit is something the appellate courts will ultimately need to address.  For now, simply recognize that this tension exists when litigating de facto custodian case.

One assumes that the De Facto Custodian was enacted to protect the relationship of people who devote significant energy and resources raising children who are not their own children (and to provide stability of care-giving to children who spend substantial time being raised by non-parents).  In my experience a substantial number of children are being raised by non-parents.  This statute recognizes the rights of children to sustain a relationship with such caregivers and the right of such caregivers to maintain a relationship with these children. For the past decade De Facto Custodian “standing” has been my most successful method of obtaining custody or visitation for non-parents.  For cases in which a biological parent is fit, it is often the only available method to obtain custody or visitation for non-parents.