Post-COVID Child Custody and Visitation Case Law Update (January 2023)

Materials for South Carolina Bar’s annual Guardian ad litem training

Alukonis v. Smith, 431 S.C. 41, 846 S.E.2d 600 (Ct.App. 2020)

• Custody dispute between Maternal Grandfather (hereinafter Grandfather) and Father
• Prior to Mother’s death, the child primarily lived with Mother and her family in Florida, with Mother occasionally bringing the child to South Carolina to see Father
• Mother had mental health issues that impacted her parenting ability. Her family, especially Grandfather, assumed much of the parenting responsibility
• After Mother committed suicide while in South Carolina, Father took physical possession of the child. Fearing Mother’s family would remove the child to Florida, he began preventing her family from visiting the child. Eventually Grandfather filed for custody and was awarded temporary custody
• At trial, the family court found Grandfather met the criteria of De Facto Custodian but found Father was fit. It awarded Father primary physical custody and final decision-making authority. It granted Grandfather secondary custodianship and extensive visitation
• Grandfather appealed custody issue
• Court of Appeals reversed custody to Grandfather and remanded to family court to set Father’s visitation schedule
  • Court of Appeals affirmed the family court’s determination that Father was fit and that Grandfather had met his “clear and convincing” evidentiary burden of proving he was the child’s De Facto Custodian
  • It further found that Grandfather was the child’s psychological parent
  • In finding Grandfather was the child’s psychological parent, it noted Grandfather undertook “the obligations of parenthood by being affirmatively involved in Child’s life, assuming the day to day caretaking duties, and providing emotional support for Child on a continuing basis… Because Father abdicated his parental role for much of Child’s life prior to [Mother’s] death, we believe he left a void there that was gladly and graciously filled by Grandfather.”
  • The Court of Appeals noted, “there exists a rebuttable presumption that the right to custody of a minor child automatically reverts to the surviving parent when the custodial parent dies.”
  • It held that even when a party meets the criteria of De Facto Custodian or psychological parent, that party has a “significantly higher burden” to obtain custody from a fit parent. However it found that Grandfather met this significantly higher burden
  • The opinion has a lengthy factual recitation of why Grandfather met this burden. Basically, while Mother was alive, Father had a limited relationship with the child and a contentious relationship with Mother. Meanwhile, Grandfather was the primary caretaker during this same time period
• Alukonis is the first published opinion analyzing the factors in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989), to award custody to a third-party over a fit parent
• It is the first published opinion to analyze South Carolina’s De Facto Custodian Statute, S.C. Code § 63-15-60. In doing so, it establishes that such custodians have a “significantly higher burden” to obtain custody from a fit parent
• While it is the third published opinion to recognize a party as a psychological parent, it is the first published opinion to award custody to a psychological parent over parent. In doing so, it establishes that psychological parents have a “significantly higher burden” to obtain custody from a fit parent
• It is the first published opinion to find a party can be a psychological parent when that party is the same gender as the opposing party

Turner v. Thomas, 431 S.C. 527, 848 S.E.2d 353 (Ct.App. 2020)

• Custody and visitation dispute between a Maternal Grandmother, a Maternal Grandfather, and a Psychological Parent with Mother deceased
• Mother had been dating Garrand when she died and child lived with Garrand for most of the first 2 ½ years of life
• At trial, the family court found Garrard was a de facto custodian and psychological parent, awarded Grandmother custody, granted Grandfather and Garrard visitation
• Grandfather appealed
• The Court of Appeals, examining the four-prong test of Middleton v. Johnson, 369 S.C. 585, 594, 633 S.E.2d 162, 167 (Ct. App. 2006), affirmed the family court’s finding that Garrard was a psychological parent.
  • It was undisputed that the Child and Garrard lived in the same household for 2 ½ years
  • It found Mother consented to Garrard establishing a parent-like relationship with the Child, as he lived with the Child for almost all of the Child’s life, and there was no other paternal figure for the Child
  • Mother encouraged Garrard to take on a parental role
  • Garrard assumed a care-taking role for the Child and contributed to the Child’s financial support: both directly and, by covering many of the household’s expenses, indirectly
  • The Court of Appeals held that 2 ½ years was sufficient time to establish a bonded parental relationship with the Child
• Grandfather objected that Mother’s Facebook post attesting to Garrand being “such a great father to [Child],” arguing it was inadmissible hearsay
  • The Court of Appeals held it was properly admitted, pursuant to Rule 803(3), SCRE, as a statement of Mother’s existing state of mind
• Grandfather also objected to the family court considering evidence of Garrard’s relationship with the Child after this action commenced
  • The Court of Appeals found it was proper to consider this evidence in determining visitation, and that the family court had not considered this evidence in determining Garrard was a psychological parent
  •  It declined to address whether the family court may properly consider evidence of the existence of a psychological parent-child relationship arising after an action is filed
• Grandfather also appealed the finding that Garrard was a de facto custodian
  • The Court of Appeals declined to address that issue because its finding that Garrard was a psychological parent was sufficient to award him visitation
• Grandfather appealed the award of custody to Grandmother.
  • Evidence showed that Grandmother was better able to care for the Child and was more willing to facilitate Child’s relationship with others

Whitesell v. Whitesell, 431 S.C. 575, 848 S.E.2d 588 (Ct.App. 2020)

• Father filed custody modification action
• Family court denied request and Father appealed
• Primary issue on custody was Father’s claim that the family court failed to properly address witness credibility, specifically Mother’s credibility
• Neither family court nor guardian found Mother uncredible
  • Court of Appeals affirmed this finding
• Court of Appeals affirmed finding that both parties bore responsibility for their parenting relationship deteriorating
• “Father does not show by a greater weight of the evidence that the family court erred.”
• “Father argues that the family court made a variety of specific errors and that even if those alleged errors are insufficient to warrant relief when standing alone, they have combined to prejudice him and deprive him of a fair trial. As already noted, the family court’s decision was driven by a view of the record with which we agree.”
  

Sellers v. Nicholls, 432 S.C. 101, 851 S.E.2d 54 (Ct. App. 2020)

• Custody modification case brought by Mother, seeking sole custody and supervised visitation for Father
• During litigation Mother was granted permission to relocate with child within the state
• During litigation Mother raised sexual abuse allegations against Father which DSS determined were unfounded
• Mother’s second attorney was disqualified and she was unable to obtain a new attorney in time for trial
• Despite Mother’s request, family court would not continue trial—the Court of Appeals found the family court erred in considering itself bound by prior order but held continuance should not have been granted
• Family Court granted Father primary physical custody and Mother appealed
• Court of Appeals affirmed change of custody
  • “[W]hen one parent relocates when there is joint physical and legal custody, we must first address a modification of primary physical custody.”
  • Mother “failed to show Children would see the economic benefit, which was her basis for the move”
  • “Mother was willing to violate the family court orders, failed to inform Father of Son’s medication, and failed to provide that medication when Son was in Father’s custody.”
  • “Mother placed her personal interests ahead of Children’s by choosing to spend time with her boyfriend during specific instances when Children needed her.”

Daily v. Daily, 432 S.C. 608, 854 S.E.2d 856 (Ct.App. 2021)

• Relocation case in which Mother wanted to move from South Carolina to Florida and Father already lived in Georgia
• During pendency of action, Father moved from Georgia to Ohio without first informing Mother or the guardian
• At trial, family court allowed relocation and changed Father’s visitation schedule
• Both parties appealed
• The Court of Appeals found the family court did not error in awarding Mother sole custody
  • It found the parties’ respective relocations, and inability to communicate and make joint decisions necessitated Mother having sole custody
  • It discussed Father’s failure to foster a positive relationship between Mother and daughters, contrasting that with Mother’s continuous and appropriate efforts to encourage their relationship with Father
• Court of Appeals altered parenting plan to provide greater clarity and required Mother to provide notice of events
• Required Father to take daughters to extracurricular activities during his weekends
  • “By taking Daughters to these events, Father attends to Daughters’ psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational needs.”
• The Court of Appeals denied Father’s request to return the children to school at the end of his weekends, finding that the daughters needed time in Mother’s home to “recuperate and resume their routine prior to the start of the school week.”
• Court of Appeals gave Mother an additional weekend during summer
• Court of Appeals granted Father additional time during Christmas
• Daily demonstrates that, under de novo appellate review, the Court of Appeals will examine the minutia of custody orders and alter them if it believes modifications will benefit the children
• Family courts can require a non-custodial parent to take children to extracurricular activities during that parent’s time
  

Singh v. Singh, 434 S.C. 223, 863 S.E.2d 330 (2021)

• Cannot arbitrate family court child issues
• Neither South Carolina ADR rule 3 or 4 authorizes arbitration of children’s issues, thus no subject matter jurisdiction
• The parens patriae doctrine, “Parents may not attempt to circumvent children’s rights to the protection of the State by agreeing to binding arbitration with no right of judicial review.”

Stasi v. Sweigart, 434 S.C. 239, 863 S.E.2d 669 (2021)

• TPR/adoption action against Mother
• Family court granted TPR/adoption but Court of Appeals reversed
• Supreme Court granted certiorari and reversed Court of Appeals
• Found Mother’s failure to visit was willful under S.C. Code § 63-7-2570(3)
  • In reaching this decision, the Supreme Court credited Mother with only two visits during the 33 month time frame at issue. It did not credit her with two short visits when she came to South Carolina for court, finding them incidental
  • It did not credit her with Facetime visits, finding, “Whether a parent consistently pursues—or often chooses not to pursue—FaceTime or telephone contact can be important evidence on the difficult question of whether the failure to make court-ordered visitation was understandable, or willful. However, FaceTime or telephone contact is not visitation. As the family court judge aptly stated in the November 2018 order, ‘A parent cannot hug a child or dry a crying child’s tears via FaceTime.’”
  • The Supreme Court noted Mother missed almost 50% of her FaceTime calls including twelve consecutive weeks that ran over a month after she was served with the TPR action
  • It found her failure to exercise this FaceTime visitation–especially during periods when she was unable to exercise physical visitation, was evidence of willfulness
  • It further found her more regular exercise of visitation beginning five months after this action was filed was “judicially motivated,” and therefore not a mitigation of her prior failure to visit
  • Supreme Court noted numerous ways Mother’s own bad behavior hindered her ability to visit and considered that evidence of willfulness
• Supreme Court found TPR/adoption in child’s best interests
  • The child, who was six years old at the time of the 2018 trial, had lived with the adoptive parents since age two. Their home was essentially the only environment the child had ever known. The child referred to them as “mom” and “dad” and to their other children as her brothers and sisters. The expert in child development and attachment, testified the child has developed a secure-attachment relationship with them in the years the child has lived with them
  • Child had problematic relationship with Mother, whom she found untrustworthy
  • Child had not seen or spoken to Mother for three years at time of Supreme Court opinion

Swain v. Bollinger, 435 S.C. 280, 866 S.E.2d 923 (2022)

• TPR/Adoption case between Father and Maternal Grandfather (Grandfather)
• Shortly after child’s birth, Grandfather obtained custody though DSS because both parents were using drugs
• Mother eventually rehabilitated but Father continued to use drugs, engage in criminal behavior, and stopped paying child support
• Grandfather filed to terminate Father’s parental rights and to adopt the child.
• At trial the following year, the family court had concerns with Mother and Grandfather being listed as parents on the child’s birth certificate, despite neither Mother, Grandfather, nor the guardian ad litem having an issue with it
• The family court found that Grandfather had proven grounds to terminate parental rights but failed to establish that termination would be in the child’s best interests. The court based its conclusion on the fact that the birth certificate would include Child’s grandfather and mother as parents and a denial of TPR and adoption would not affect Child’s stability since grandparents had legal custody
• The Court of Appeals, in an unpublished opinion, affirmed. It acknowledging Father’s conduct could be grounds for TPR if this were a DSS adoption, but because the grandparents already had legal custody of Child, TPR would not promote stability
• The Supreme Court granted certiorari and reversed
  • The family court granted undue weight to the birth certificate issue, especially as “neither Mother, Grandfather, nor the guardian ad litem expressed any reservations about listing Grandfather as Child’s father. Further, the modern day family structure reflects itself in many forms—a historical change from the nuclear family that society traditionally viewed as the norm.”
  • Supreme Court “reject[ed] the notion that because Grandfather already has custody, TPR and adoption would not promote stability for the child. Custody and adoption are clearly two distinct statuses, with the latter providing a level of permanency that a custody determination cannot. Without the adoption, Father would be free to attempt to inject himself into the child’s life at any time, either by demanding visitation or by bringing an action for custody. When everyone—including Father—agrees that Child does not even know who he is, it is difficult to fathom how this could possibly be in Child’s best interest.”
  • The Supreme Court further noted that adoption would enable the child to qualify for Grandfather’s social security benefits and that adoption would foster stability by leaving the child in the only living situation she had known
  • Finally, the Supreme Court rejected the Court of Appeals’ suggestion that a different standard for TPR should apply when a child is in DSS custody
• Swain establishes an important point: TPR and adoption promote stability in a manner that mere custody cannot
• Swain also establishes that the family courts can approve a grandparent adoption without having to terminate the parental rights of that grandparent’s own child

Glinyanay v. Tobias, 436 S.C. 137, 871 S.E.2d 193 (Ct.App. 2022)

• Visitation modification case
• Family court awarded Mother sole custody and suspended Father’s visitation rights, ordering Father to undergo a psychological evaluation and complete any recommended treatment, and ordering Father’s counselor and daughters’ counselor to determine when Father’s visitation could resume
• Father appealed
• Court of Appeals first found it appropriate to allow children’s counselor and the guardian ad litem to testify about statements the children had made to them
  • Counselors’ testimony on children’s hearsay was authorized by  Rule 803(4), SCRE (statements “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment; provided, however, that the admissibility of statements made after commencement of the litigation is left to the court’s discretion.”
  • “Rule 803(4) is subject to overextension (almost anything a mental health patient says could be “reasonably pertinent” to the diagnosis), and the wise trial judge will, when appropriate, deploy his discretion ‘to admit the statements only as proof of the patient’s condition and not as proof of the occurrence of the recited events.’ That is what the family court did here. We recognize the ‘selfish treatment motivation’ may not hold up when the patient is a malingerer or afflicted by a mental malady like Munchausen’s syndrome, but that is why Rule 803(4) contains the ‘reasonably pertinent’ requirement, and Rules 401 and 403, SCRE, may be used to exclude the irrelevant and unduly prejudicial. It is also why we have cross-examination.” (citations omitted)
  • Because counselor’s testimony met hearsay exception, counselor’s written report was merely cumulative or met requirements of Rule 7(c), SCFCR (authorizing written report of physician)
  • Guardian’s testimony on children’s hearsay statements was “cumulative to her report,” which was entered into without objection
• Father also appealed denial of his request to cross-examine older daughter
  • Family court did in chambers interview of daughter
  • Rule 23, SCFCR, regarding presence or testimony of a child
  • Court of Appeals found daughter’s “testimony was not essential to establish the facts.”
  • “[T]he counselors explained their diagnoses did not depend on whether Father actually did or said what his daughters claimed. What mattered was the girls’ perceptions of and responses to the situations and environment. The counselors acknowledged these perceptions could be flawed, unrealistic, or mistaken. Because the truth of the events was not essential to the custody and visitation issue, the family court acted within its discretion in ruling Rule 23, SCRFC, did not require J’s testimony.”
• Court of Appeals affirmed Father’s visitation being suspended
  • Court of Appeals cited evidence that the daughters’ mental health had deteriorated from their visits with their Father. It further noted Father’s visitation rights were suspended “without prejudice.”
• Court of Appeals reversed provision suspending Father’s visitation until his and daughters’ counselors “deemed it appropriate.”
  • Cited numerous cases that “The family court cannot delegate its authority to determine the best interests of the children”
    

Jacobs v. Zarcone, 436 S.C. 170, 871 S.E.2d 211 (Ct.App. 2022)

• Custody and visitation dispute involving Mother, Paternal Grandparents, and Stepmother, with Father deceased
• Family court awarded custody to Stepmother, visitation to Paternal Grandparents, and supervised visitation to Mother, who it found to be unfit
• Mother appealed
• Mother argued she cannot be unfit as DSS allowed her to regain custody of another child
  • Court of Appeals rejected that argument, noting “serious concerns about Mother’s ability to protect the children from David [Stepfather] given her repeated violations of the ‘no contact’ provision in the second DSS safety plan, her continuing refusal to believe David injured D.J., and her minimization of other incidents.”
  • Mother’s testimony indicated a clear disbelief that Stepfather had abused the children
  • Both the guardian ad litem and the children’s therapist noted Mother’s pattern of minimizing Stepfather’s behavior and not believing the children
• Court of Appeals found S.C. Code § 63-3-550 gave Stepmother standing to seek custody of a neglected or delinquent child
  • Stepmother was most logical choice to have custody
  • Family Court and Court of Appeals still analyzed factors of Moore v. Moore, 300 S.C. 75, 79–80, 386 S.E.2d 456, 458–59 (1989), and the doctrines of Psychological Parent and DeFacto Custodian
  • Court of Appeals affirmed finding that Stepmother’s was a Psychological Parent because Father had fostered Stepmother’s parent-like relationship with the children while he was alive
  • The Court of Appeals noted the amount of caregiving Father delegated to Stepmother while he worked
• The Court of Appeals vacated the portion of the family court’s order finding Stepmother to be a de facto custodian because the Children were not in Stepmother’s sole custody for one year prior to the commencement of this litigation.
  • It noted the controlling statutory language of S.C. Code Ann. § 63-15-60(A)(2)
• Court of Appeals affirmed award of grandparent visitation
  • Amount of visitation was agreed to between Grandparents and Stepmother
  • No finding that Mother’s visitation denials lasted in excess of ninety days, as required by S.C. Code § 63-3-530(A)(33)
    

Rossington v. Rossington, Op. No. 28123 (S.C. Sup. Ct. filed November 23, 2022) (Howard Adv. Sh. No 41 at 26)

• Custody trial in which family court awarded joint custody
• Mother appealed
• In unpublished January 2022 opinion, Court of Appeals reversed and awarded Mother custody
• Father filed petition for writ of certiorari
• Supreme Court dispensed with briefing and partially granted writ
• Remanded for trial de novo
• Supreme Court found “it is more than likely the amount of time that has passed since the family court’s order has resulted in a stale record incapable of reflecting facts and circumstances from which the current best interests of the child can be determined.”
• Prior week, Supreme Court issued order requiring expediting of appeals involving child custody
  

SCDSS v. Frank, Op. No. 5957 (S.C. Ct. App. filed January 4, 2023) (Howard Adv. Sh. No. 1 at 36)

• DSS abuse and neglect case in which family court placed Father on Central registry for sexual abuse of daughter and Father appealed
• Father unsuccessfully challenged subject matter jurisdiction because alleged abuse took place in North Carolina
  • Court of Appeals held there was subject matter jurisdiction as UCCJEA applied
  • Child custody had previously been litigated in South Carolina
  • Mother and child lived in South Carolina
  • Central registry finding could impact child custody
• Father unsuccessfully challenged use of child’s counselor as expert
  • Child’s counselor had graduate degree in counselor education and had counseled the child
  • Therefore, she “possessed the specialized knowledge to assist the family court in determining a fact in issue.”
• At pre-trial court granted DSS’s request pursuant to  S.C. Code § 19-1-180 to present child’s out-of-court statement in lieu of testimony
  • Court of Appeals reversed
  • The expert’s testimony that Child would “more likely than not” experience severe emotional trauma from testifying was insufficient “to find there was a substantial likelihood that Child would suffer severe emotional trauma from testifying.”
  • The Court also expressed concern “by the lack of credence given to Father’s suggestion to waive Father’s presence in the courtroom to allow Child to testify.”
  • It noted DSS had argued Father could question the people he thought Child may have been coached by as a remedy but that the family court then limited Father’s scope of cross-examination
• Father successfully challenged limitations on his cross-examinations
  • Questions of expert’s knowledge of divorce proceedings was relevant as “evidence regarding Mother and Father’s divorce was relevant to the trustworthiness of Child’s statements.”
  • Cross-examination of Mother regarding motive was improperly limited “because evidence regarding Mother’s motive to coach Child was relevant to facts in issue.”
• Court of Appeals remanded for new trial