Being the primary caretaker, not discussing litigation with the child, and not harassing the other parent continue to be prevailing factors in custody case

The July 28, 2010 Court of Appeals opinion in High v. High, 389 S.C. 226, 697 S.E.2d 690 (Ct. App. 2010) presents little new analysis of custody law.  Mother was awarded custody by the family court and this was affirmed by the Court of Appeals, primarily because it appeared that mother was the primary caretaker of the child, Father had gotten the child involved in the custody litigation while Mother took steps to shield her from the litigation, and Father harassed Mother to such an extent that she lost her job during the divorce litigation.

High presents one interesting procedural and one interesting evidentiary issue.  The procedural issue was the timeliness of Father’s Rule 59, SCRCP post-trial motion.  The family court issued a final order but then modified its final order because a portion of the parties’ agreement had been left out of the order.  Father then filed his post-trial motion within ten days of receipt of the modified final order.  One issue on appeal was whether this motion was timely, as, if the motion wasn’t timely, Father’s appeal would not have been timely.  The second final order noted that the first final order inadvertently omitted language that both parties had agreed to include and “therefore, such Order is rescinded ab initio and replaced by this Order.”  Because the first final order was voided ab initio, the Court of Appeals held that the time to file a post-trial motion did not begin to run until the second final order issued.  Thus Father’s post-trial motion and subsequent appeal was timely.

The evidentiary issue involved Father’s attempts to have a licensed professional counselor he had taken the child to during the litigation testify as to what the child had told the counselor in counseling.  He first attempted to have the counselor deemed an expert in “child counseling.”  The court refused to make the counselor an expert and did not allow the counselor to testify as to what the child told her or allow the counselor’s records into evidence.

The High opinion analyzes and rejects the different theories Father used in his attempt to make the child’s hearsay statements to the counselor and the counselor’s treatment records admissible.  The Father argued that the child’s statements were admissible under Rule 703, SCRE, as the basis of an expert’s opinion.   The Court of Appeals, while noting that the family court rejected the counselor as an expert witness, also noted that Rule 703, SCRE, would not have made this hearsay admissible as that rule only allows:

an expert giving an opinion to rely on facts or data that are not admitted in evidence or even admissible into evidence; however, it does not allow for the unqualified admission of hearsay evidence merely because an expert has used it in forming an opinion.

Father also tried to argue this hearsay was admissible under Rule 803(3), SCRE, as a statement of present state of mind, emotion, or physical condition; under Rule 803(4), SCRE, as a statement made for medical treatment; and under Rule 803(6), SCRE as records kept in the ordinary course of business.  The Court of Appeals rejected the Rule 803(3 & 6), SCRE) arguments by noting that the counselor was able to testify fully regarding her notes and thus such evidence was cumulative and rejected the Rule 803(4), SCRE argument because that rule notes that the admissibility of statements made after the commencement of the litigation is left to the court’s discretion.  Given the family court’s concern over Father’s involvement of the child in this litigation, the Court of Appeals did not find the exclusion of this evidence to be an abuse of discretion.

The family court noted Father could have asked the child to be heard from directly rather than trying to prove her preference through her counselor.  I have lectured before about how to get the child heard in the family court and believe that South Carolina family law attorneys remain too cautious about seeking to have children testify or speak to the judge in chambers if they are the only witness or an important corroborating eyewitness to vital custody factors or if their custodial preference is an issue.


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