Material for National Business Institute Lectures in 1999 and 2000; Updated for publication in South Carolina Trial Lawyers Magazine Winter 2000
Note: I have subsequently updated the research and analysis on how to modify child custody. The more recent publication is Things to Think About Before Filing to Modify Child Custody.
Basically, there are four ways of changing custody. Each way has different proof issues and requires somewhat different strategies. Developing a theory as to why custody should be changed is an important part of creating a litigation strategy.
The first type of modification case is where the custodial parent is unfit. The basic argument is that foster care is better able to care for the child than the custodial parent. The threshold issue is the custodial parent’s fitness and this type of case lends itself to a “scorched earth” strategy in which every flaw of the custodial parent is uncovered and stressed. The attorney representing the custodial parent will primarily focus on that parent’s fitness. The attorney representing the noncustodial parent will also need to focus on that parent’s ability to properly care for the child, especially where that parent has had minimal or no contact with the child.
Often, this type of case will arise when the Department of Social Services (DSS) bring a case against the custodial parent for abuse or neglect and names the other parent as a defendant. See e.g., Charleston County Dept. of Social Services v. Father, Stepmother, and Mother, 317 S.C. 283, 454 S.E.2d 307 (1995) (concerns regarding mother’s sexual abuse of children result in temporary placement with maternal uncle and then permanent placement with father).
A lengthy litigation process can sometimes help one or both parties. If the custodial parent has the capacity to rehabilitate, time allows for the rehabilitation to take place. If the noncustodial parent does not have a relationship with the child, time allows for the relationship to develop and allows that parent to show he or she can properly care for the child. The noncustodial parent may file subsequent temporary relief motions to seek increased visitation based on an increased relationship with the child. See, Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735 (Ct.App. 1998) (numerous pendente lite hearings allowed based on showing of “changed [n.b., not ‘substantially’ changed] circumstances”). Counsel needs to determine whether lengthy or quick litigation is more helpful to the client’s position and should try to control the litigation tempo accordingly.
The second type of modification case is where the child is having problems that the custodial parent cannot remedy. This situation occurs when some circumstance is causing problems in the child’s life (typically with health, school, stepparent, half or step-siblings) that the custodial parent cannot or will not remedy. The focus of this case is on the problematic circumstance and the custodial parents inability to fix it.
In representing the noncustodial parent, one should try to show: 1) the child is having serious problems related in some way to the custodial home environment or the custodial parent; 2) the custodial parent is unconcerned, ineffectual or the cause of the problem-at a minimum, the custodial parent is unable to remedy problem; and 3) the noncustodial parent is able to remedy the problem. In representing the custodial parent, one should try to show that the problem is not that serious or that the noncustodial parent cannot remedy it (or is the cause of it).
There are numerous recent reported cases in which custody has been changed on this basis. In Kisling v. Allison, 343 S.C. 674, 541 S.E.2d 273, 277 (Ct.App. 2001), custody was changed to a father, in part, because mother’s chaotic living situation and behaviors was causing the child undue stress and separation anxiety. In Housand v. Housand, 333 S.C. 397, 509 S.E.2d 827, 830 (Ct.App. 1998), a mother’s refusal to maintain steady employment and her inability to provide financially for her children was a basis for changing custody to father. In Watson v. Poole, 329 S.C. 232, 495 S.E.2d 236, 239 (Ct.App. 1997), a mother’s continued unfounded child molestation allegations against father and unwillingness to foster a relationship between the child and father mandated a change custody to father. In Stanton v. Stanton, 326 S.C. 566, 484 S.E.2d 875, 878 (Ct.App. 1997), custody modification was warranted by mother’s failure to ensure child’s regular attendance at therapy sessions and by mother’s inflexibility with regard to visitation. Inattentiveness to a child’s educational problems is also a basis to change custody. Kisling, supra; Glanton v. Glanton,, 314 S.C. 58, 443 S.E.2d 810, 811-12 (Ct. App. 1994).
In this type of modification case, where a parent is requesting a pendente lite change of custody, the attorney filing the modification action may want to consider requesting the appointment of a guardian nisi. A guardian nisi is a guardian ad litem appointed by the court prior to any hearing. If either party objects within a designated period of time (usually 30 days but set within the order of appointment, a new guardian can be appointed; otherwise, the guardian nisi will remain the child’s guardian ad litem. A guardian nisi can be vital at the temporary hearing in confirming the nature and extent of the child’s problems, which the custodial parent may try to minimize. A sample order appointing a guardian nisi is below.
An alternative that some attorneys use to appointing a guardian nisi is to actually prepare and present the child’s affidavit at the temporary hearing. However, this presents potential legal and ethical problems. Rules 4.3 and 4.4 of the South Carolina Rules of Professional Conduct set limitations on an attorney’s dealings with unrepresented persons and third parties that may potentially be violated by an attorney’s contact with a minor child whose custody is at issue. Further, Rule 23(b), SCRFC discourages the use of children as witnesses to the misconduct of either parent.
The third type of modification case is based on the child’s preference. It typically occurs with adolescent or teenage children who desire to develop a relationship with the noncustodial parent. Often the child is also having problems with the custodial parent. The focus of this type of case is obviously on the child’s preference and its reasonableness. However, both parental pressure and the vagaries of children can lead to the child changing preference pendente lite, instantly turning what appeared to be a strong case into a losing case.
Effective June 15, 1998, Section 20-7-1515 was added to the South Carolina Code. Titled “Child’s preference for custody to be considered,” the statute holds: “In determining the best interests of the child, the court must consider the child’s reasonable preference for custody. The court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.” As of January 16, 2002, no reported South Carolina cases interpret this statute.
The case law dealing with a child’s preference shows that it is an important, but not necessarily prevailing, factor. A teenage child’s expressed preference to reside with his father was one factor in changing custody in Aiken v. Nelson, 292 S.C. 400, 356 S.E.2d 839, 840-41 (1987). However, in Bolding v. Bolding, 278 S.C. 129, 293 S.E.2d 699 (1982), the Supreme Court reversed a change of custody based on an eleven year old son’s desire to live with his father, finding that this desire alone was not sufficient to show that the change of custody would be in the child’s best interests. In Smith v. Smith, 261 S.C. 81, 198 S.E.2d 271, 274 (1973), the Supreme Court reversed a lower court’s change of custody, stating, “The mere fact that the seven year old child expressed a desire to live with his father did not constitute a change in condition sufficient to warrant a change in custody.”
The court in Moorhead v. Scott, 259 S.C. 580, 193 S.E.2d 510 (1972), upheld a denial of a change in custody request, which was based on the wishes of children aged nine, eleven and twelve to live with their father. In Perry v. Perry, 315 S.C. 373, 433 S.E.2d 911, 912 (Ct.App. 1993), the Court of Appeals affirmed a family court order awarding father custody of the parties’ three children (ages 12, 8, and 5 at the time of trial), despite evidence that the children wished to live with mother, as there was substantial evidence indicating that father was better able to care for the children.
To obtain a change of custody on preference grounds, a practitioner should show: 1) the child is of suitable age and discretion to have input and has a reasonable basis for wanting to live with the noncustodial parent; 2) the noncustodial parent is capable of parenting the child; and 3) the noncustodial parent is willing to foster a relationship between the child and the other parent. Often, in preference cases, attempting to prove the custodial parent’s unfitness is counterproductive because it can give the court concerns regarding the noncustodial parent’s willingness or ability to foster a relationship with a parent with whom the child has had a strong, substantial relationship.
Again, where the parent is requesting a pendente lite change of custody, the attorney filing a modification action based on the child’s preference may want to consider requesting the appointment of a guardian nisi. A guardian nisi can be vital at the temporary hearing in confirming the child’s preference problems. However, unless the child’s preference is extremely strong (e.g., the custodial parent is moving away from where a teenager has lived most of his or her life, uprooting the child from school and friends) or unless the child is having severe problems with the custodial parent, the court generally will not change custody pendente lite where the basis of the case is the child’s preference.
The final basis to change custody is rehabilitation. A noncustodial mother’s rehabilitation is sometimes used as a basis for a change of circumstances case. In only one reported has a mother’s rehabilitation been a sufficient basis to take custody away from a father. Stutz v. Funderburk, 272 S.C. 273, 252 S.E.2d 32, 34 (1979). In light of the abolition of the “tender years” doctrine and subsequent case law it appeared to many practitioners that a parent’s rehabilitation, absent one of the above factors, was probably not grounds to change custody.
Yet, in Housand v. Housand, 333 S.C. 397, 509 S.E.2d 827 (Ct. App. 1998), the Court of Appeals reversed the family court’s refusal to change custody to a father based primarily on the father’s rehabilitation. Even though the opinion deals somewhat with the problems the mother was having, the basis for the change of custody was the father’s rehabilitation. The Housand opinion provides some basis for changing custody on rehabilitation, but its failure to identify and discuss the particular problems the children were having in the mother’s custody provides little guidance to the family court bar.
Each basis for changing custody has different proof issues and different litigation strategies. Therefore, before bringing any custody modification action, counsel should have a clear idea of the reason or reasons that custody should be changed.
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