Things to Think about Before Filing to Modify Child Custody^[1] (January 2009)

Material for Charleston County Bar CLE–January 2009. Republished as “Five Common Ways to Modify Child Custody” for American Journal of Family Law, Spring 2011.

Search South Carolina case law for the phrase “best interests of the child” in the same sentence as “child custody” or “visitation” and the results may crash your server. Myriad cases analyze this issue and the results do not provide firm guidance: issues that might lead to modification in one case might be insufficient to lead to modification in another case.

“[W]hen a previous order addressing the issue of custody exists, a showing of changed circumstances is required for a court to grant a change in custody.” Altman v. Griffith, 372 S.C. 388, 642 S.E.2d 619, 624 (Ct.App. 2007). However some case law creates an almost circular argument as to what a showing of “changed circumstances” requires. For example:

In all child custody controversies, the controlling considerations are the child’s welfare and best interests. In reaching a determination as to custody, the family court should consider how the custody decision will impact all areas of the child’s life, including physical, psychological, spiritual, educational, familial, emotional, and recreational aspects. Additionally, the court must assess each party’s character, fitness, and attitude as they impact the child. There exist no hard and fast rules for determining when to change custody and the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.

In order for a court to grant a change of custody based on changed circumstances, the party seeking the change must meet the burden of showing changed circumstances occurring subsequent to the entry of the order in question. A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the child will be served by the change. The change of circumstance relied on for a change of custody must be such as would substantially affect the interest and the welfare of the child, not merely the parties, their wishes or convenience. The circumstances warranting a change in custody must occur after the date of the original custody order. Custody decisions are matters left largely to the discretion of the trial court. Furthermore, the appellate court should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court.

Kisling v. Allison, 343 S.C. 674, 541 S.E.2d 273, 275-76 (Ct.App. 2001) (emphasis added).

The appellate courts have imposed a higher burden on a party seeking to modify a child support order that was based on a settlement agreement. Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643,648 ( 2006); Townsend v. Townsend, 356 S.C. 70, 587 S.E.2d 118, 120 (Ct.App. 2003). Whether an increased burden to modify custody or visitation agreements should be imposed has not been addressed by the appellate courts but a similar logic applies: it should be harder for parties to modify their agreements than to modify requirements imposed upon them by the court.

The parent on the receiving end of such a custody or visitation modification lawsuit will rightly perceive the action as an attack on his or her parenting; any flexibility or generosity that parent was providing on visitation prior to the action being filed will likely disappear once the action is served. Since there are various subtle–and some not-so-subtle–methods in which a custodial parent can undermine (or support) the non-custodial parent’s relationship with the child, filing a marginal modification case can frequently leave the parent seeking modification with a worse relationship with the child than that parent had before the action was filed. Given uncertainty in what is required to modify child custody and visitation and whether a higher burden of proof is required in cases which attempt to modify orders based upon agreements, a family court practitioner should counsel caution before filing a custody or visitation modification case.

The law does not answer the question of what makes a change of custody in the child’s best interests, deliberately leaving the answer vague and investing the family court judge with tremendous discretion. However there are common patterns in the methods that have been successfully used to change custody. Basically, there are five ways of changing custody, one of which has very limited application and which I perceive of as a “wild-card” basis. 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 custody modification litigation strategy.

A. What’s Not a Basis to Change Custody?

Before analyzing what is a basis to change custody, it is useful to know common factors that are not, by themselves, bases to change custody. Under South Carolina law relocation, motherhood and remarriage (by itself) are clearly not bases to change custody. Prior to 2004, a custodial parent’s relocation outside of South Carolina could be a basis to change child custody because there was a presumption against such relocations. See, McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982). Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32, 35 (2004) abolished this presumption and held that the “best interests” standard is applicable to relocations cases.^[2] The “Tender Years Doctrine” in which there is a preference for awarding a mother custody of a child of tender years was abolished on May 18, 1994. See S.C. Code Ann. § 20-7-1525, now § 63-15-10. “[R]emarriage alone is not sufficient to warrant a change in custody.” See e.g. Latimer, supra.

1. Prove That Defacto Custody Is Not the Same as De Jure Custody

Often what the parties’ custody order says and the actual physical placement of the child differ–and often have differed for substantial periods of time. One parent may allow the child to live with the other parent for months (or years) without either party seeking modification of the custody order. Litigation arises when the parent who has physical placement of the child wants child support or the parent who has legal custody of the child wants the child returned.

Rarely are such modification cases heavily contested and there is no reported case law in South Carolina analyzing such modification cases. In bringing such a modification action there are four things that should be proven to succeed: 1) the parent seeking modification is fit; 2) the parent seeking modification has had physical placement of the child for a substantial time (6 months or more); 3) that the child is happy there; and 4) that the child is doing well in that parent’s care.

Assuming these four things are proven, such modification cases are hard to lose. The Defendant in these cases agreed to let the Plaintiff have the child: arguing that the Plaintiff is unfit (unless the argument is that the Plaintiff became unfit after physical custody was transferred) or that the move was not in the child’s best interests (unless the child is doing poorly) will have little traction.

Though there is no case law describing this change of circumstance, in my experience this is the most common method of obtaining a change of custody.

2. Prove The Custodial Parent is Unfit

The next 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 non-custodial 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) brings 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 non-custodial 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 non-custodial 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.

3. Prove the Child is Having Substantial Problems the Custodial Parent Cannot Remedy

The third 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, step-parent, 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 parent’s inability to fix it.

A custodial parent claiming the child is incorrigible (literally “beyond the control of parents”) under S.C Code § 63-5-50 should expect to lose any custody modification case brought by the other parent.

In representing the non-custodial parent, one should try to show: 1) the child is having serious problems related in some way to the custodial parent or the custodial home environment; 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 non-custodial 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 non-custodial parent cannot remedy it (or is the cause of it).

There are numerous reported cases in which custody has been changed on this basis. In Kisling, supra, custody was changed to a father, in part, because mother’s chaotic living situation and behaviors were 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. It is also possible to file the modification and get a guardian appointed (and investigating) before seeking a pendente lite change of custody.

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.

4. Prove the Child’s Preference

This 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 non-custodial 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 (now Section 63-15-30) was added to the South Carolina Code. Originally 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.” In Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114, 120-121 (2004) the thirteen year old daughter desired to live with mother and the eleven year old son expressed no strong preference. Many witnesses testified that the children should not be separated. The court considered the daughter’s preference in awarding custody to mother.  The Supreme Court held that such consideration was not an abuse of discretion.

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 child’s preference will be given little weight where the wishes of the child are influenced by the permissive attitude of the preferred parent.” Id.

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 twelve, eight and five 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.

Absent any countervailing evidence, an older teenager’s preference is almost controlling. In Guinan v. Guinan, 254 S.C. 554, 176 S.E.2d 173, 174 (1970) (citations omitted), the Supreme Court reversed the award of custody to mother of a sixteen year old boy who desired to live with the father with the following analysis:

Ordinarily, the wishes of a child of this boy’s age, intelligence and experience, although probably not controlling, are entitled to great weight in awarding his custody as between estranged parents. The court made no finding of fact tending to offset this important factor in awarding custody, and the record before us is bare of any evidence tending to do so. Absent any evidence tending to establish that the best interest of the boy would be served by awarding his custody to the mother, the court erred in failing to allow him to live with the parent of his choice.

Brown v. Brown, 362 S.C. 85, 606 S.E.2d 785, 790 (Ct.App. 2004) contains an extensive analysis of the case law on child’s preference. In Brown, twin six-year olds and a ten-year old expressed a preference to live with mother. The six-year olds were vague on the reason for their preference. The ten-year old’s preference was based, in part, on a desire to remain in the same neighborhood (which was not going to be possible post-divorce). Under these facts, the Court of Appeals affirmed that the children’s preferences were not entitled to great weight.

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 non-custodial parent; 2) the non-custodial parent is capable of parenting the child; and 3) the non-custodial 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 non-custodial 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. It is also possible to obtain the guardian’s appointment before seeking a pendente lite change of custody. 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.

Any custody modification case based solely or primarily upon a child’s preference should include a written warning to the client, “Children change their minds,” because they do so frequently (sometimes because the custodial parent pressures them; other times because children can be fickle).

5. Prove the Non-Custodial Parent’s Rehabilitation

The “wild card basis” to change custody is rehabilitation. A non-custodial 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 (See S.C. Code. Ann § 63-15-10) 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, supra, 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.

In the decade since the Housand decision, no reported case has cited it. While the outcome of the Housand decision may have been correct, its reasoning remains flawed as a parent’s rehabilitation, standing alone, provided no justification for determining that a change in custody benefits the child.^[3] I perceive Housand as an outlier and the use of “rehabilitation” alone as a weak basis to change custody. I have never brought (nor had to defend) a custody modification case brought merely upon rehabilitation.

A change of custody based purely on a parent’s rehabilitation may be appropriate in a very limited circumstance. That circumstance is where a primary caretaker parent is temporarily unfit and loses custody on that basis. If that parent then rehabilitates and the child remains more closely bonded to that parent, it could be seen as being in the child’s best interests for custody to return to the rehabilitated parent.

In a parent’s attempt to regain custody from a third-party, that parent’s rehabilitation is a factor for the court to consider. See Sanders v. Emery, 317 S.C. 230, 452 S.E.2d 636, 639 (Ct.App. 1994) (best interests of child required returning her to her biological parents, even though her great-grandparents had been caring for her for two years, and even though parents had initially relinquished custody; both parents had attended parenting classes to learn appropriate parenting skills and had taken positive steps to rehabilitate themselves, parents had exercised court ordered visitation on regular basis, and evidence showed that child shared happy relationship with her parents).

In addition to the above factors, there are other factors that are often used to modify child custody–though often in conjunction with the factors listed above. For example, child custody can be modified if the custodial parent is interfering with the non-custodial parent’s relationship with the minor child and a change of custody appears to be the best (or only) way to preserve the non-custodial parent’s relationship with the child. See e.g., Watson v. Poole, 329 S.C. 232, 495 S.E.2d 236 (Ct. App. 1997) (custody changed, in part, because mother was resistant to father’s relationship with child and made repeated false allegations of sexual abuse by father); Routh v. Routh, 328 S.C. 512, 492 S.E.2d 415 (Ct. App. 1997) (mother’s false allegations of child abuse against father a factor in changing child custody to father). Child custody can also be modified if the party’s lives change so that non custodial parent can provide a more stable environment for the child. See e.g., Routh, supra (father’s remarriage and more stable home environment a factor in changing custody to father); McCoy v. McCoy, 283 S.C. 383, 323 S.E.2d. 517 (1984) (father’s greatly stability after the parties’ divorce coupled with mother’s greater instability, resulting in father able to provide more stable setting for child, made change of custody to father in child’s best interests).

CONCLUSION

When I meet with a potential client for a custody modification case, I start with two questions: 1) Why should custody be changed?; 2) How do we prove this? Often, prospective clients have no good answer as to why custody should be changed: “because I want it” or “because I’m the mother” is not a winning strategy. Other times, they will have ideas as to why custody should be changed–“mom is living with her boyfriend” or “the child is doing poorly in school”–that suggest further investigation before filing. A mother living with her boyfriend is easily remedied and the court might not change custody if it is. A child may be doing poorly in school for a number of reasons, and if the teachers do not blame it on the custodial parent custody may not get changed. If the teachers merely do not want to “get involved” it make take substantial expense and discovery to prove the case, and one should make sure the client has the budget for such a case before proceeding.

In filing a custody modification case, one should also decide whether (and when) to a seek a pendente lite change of custody. Attorneys seem to routinely seek a pendente lite change of custody when filing the modification action, and such a request is often strategically ill-advised. If the pendente lite custody modification request fails, one’s client is likely to lose confidence in the case, may be required to pay the other parties’ temporary fees, and may be foreclosed from bringing another pendente lite custody modification request when the facts appear more favorable.

If a guardian’s involvement or discovery will be necessary to make a prima facie showing to change custody, the custody modification complaint should be accompanied by a motion for a guardian and/or discovery but a motion to change custody should be delayed until enough information to support a pendente lite custody change can be obtained. Also, when one’s client has substantial summer visitation, it makes no sense to seek a pendente lite change of custody at the beginning of summer (unless there is an emergency); instead, counsel should file the modification case near the beginning of summer but wait until shortly before school resumes to make a pendente lite custody change request (allowing time for discovery and the guardian’s investigation in the interim).

Each basis for changing custody has different proof issues and different litigation strategies. Bringing a custody modification case and then failing to prevail generally results in the party being much worse off then before the action was filed: the client has incurred attorney’s fees, may be required to pay the other party’s fees for the successful defense, and may find the other parent’s cooperative or liberal attitude towards visitation greatly diminished. Therefore, before bringing any custody modification action, counsel should have a clear idea of the reason or reasons that custody should be changed and should undertake some investigation to determine whether there is substantial evidence to support the ground upon which the change is sought.

STATE OF SOUTH CAROLINA	)	IN THE FAMILY COURT
	)	FOR THE        JUDICIAL CIRCUIT
COUNTY OF	)
	)	CASE NO:
,	)
	)	ORDER APPOINTING GUARDIAN
Plaintiff(s),	)	AD LITEM, NISI
	)
v.	)
	)
,	)
	)
Defendant(s).	)
_________________________	)

It appears that the Plaintiff has filed a complaint, seeking to change custody of the parties’ minor child. The Plaintiff bases this request for a change in custody, in part, on S.C. Code § 63-15-30, which requires the court to consider a child’s reasonable preference for custody, placing weight on the child’s age, experience, maturity and ability to express a preference.
It appears that a guardian ad litem will need to be appointed to represent the minor child and to meet with the child to help the court determine the child’s reasonable preferences and whether custody should be changed pendente lite and permanently.

Wherefore ________________ is hereby appointed guardian ad litem for the minor child to represent the child’s interests. The guardian shall meet with the minor child prior to the temporary hearing, present information on the child’s reasonable preference, and, if the guardian so desires, make a recommendation on pendente lite custody.

If neither party objects to the appointment of this guardian nisi as guardian ad litem at the time of the temporary hearing, the guardian nisi shall remain guardian ad litem for the minor child, pendente lite.

IT IS SO ORDERED!

PRESIDING JUDGE, FAMILY COURT

___________________________________________

[1]This material will only cover situations in which one parent tries to regain custody from another parent. Cases in which a parent attempts to regain custody from a third-party are governed by the four-part test set forth in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989) and its progeny, and is beyond the scope of this lecture.

[2]Latimer created a four part test in analyzing whether a proposed relocation should be allowed: 1) the potential advantages and disadvantages of the proposed relocation; 2) whether the proposed relocation would improve the quality of life for the custodial parent and the child, and it is not the result of a whim on the part of the custodial parent; 3) the integrity of the motives of both the custodial and noncustodial parent in seeking the move or seeking to prevent it; and 4) the availability of a realistic substitute visitation arrangement that will adequately foster an ongoing relationship between the child and the non-custodial parent. Id. 602 S.E.2d. at 36-37.

[3]A parent’s rehabilitation is probably an excellent basis for a parent to seek increased visitation, especially when it is clear that the prior final order limited a parent’s visitation due to fitness concerns. Ironically, no reported cases discuss rehabilitation as a basis to increase visitation.