Supreme Court approves permanent restraint against mother’s exposure of child to convicted sex-offender boyfriend

In the June 20, 2012 decision of Argabright v. Argabright, 398 S.C. 176, 727 S.E.2d 748 (2012), the South Carolina Supreme Court affirmed a permanent restraint against Mother exposing Child to her convicted sex-offender boyfriend [Doe] until the Child turned age eighteen.

Mother began dating her boyfriend in 2003.  Four years prior boyfriend pled guilty to lewd act upon a minor.  Boyfriend had performed oral sex on his daughters, then ages six and eight, and his sentence required him to register as a sex offender.  Mother learned of boyfriend’s sex offender status several months after they began dating but did not inform Father.

It wasn’t until 2009 that Mother told Child about her boyfriend’s status and she asked Child not to share this information with Father but promised to do so herself.  She didn’t tell Father and Father ultimately learned of boyfriend’s status via the sex offender registry.  Believing Mother was unaware of this status, he asked her to prohibit further contact between boyfriend and Child.  When Mother refused to do this Father filed an action to restrain Mother from exposing Child to boyfriend.

In its final order, the family court enjoined Mother from permitting contact between Child and boyfriend until Child reaches eighteen years of age.  Mother was further ordered to pay Father’s attorney’s fees and the guardian ad litem fees.  Mother appealed.

The Supreme Court affirmed.  The Court distinguished previous case law that allowed contact between parents who were convicted sex offenders and their Children, noting:

Permitting parents who are convicted sex offenders to have custody and visitation rights, under proper circumstances, is so far removed from the nonexistent right of a Child sex offender to have legally sanctioned contact with an unrelated Child that no discussion is warranted…. The family court correctly focused on the best interest of the child, not the romantic interests of [Mother].

The Supreme Court further rejected Mother’s “argument that the family court failed to consider the expert’s testimony that Doe had successfully completed treatment and posed a low risk of re-offending.” It noted:

The family court considered such evidence, but rejected it, as we do, as a basis for allowing contact between Doe and Child. The family court also considered the same expert’s cautionary admonition that if Doe were permitted contact with Child, such contact should be supervised. The guardian ad litem concurred. Based on the record before us, Appellant is the only person available to supervise contact between Child and Doe. Given Appellant’s pattern of deception and pursuit of her own interests over those of Child, an order entrusting Appellant to ensure no future unsupervised contact between Child and Doe would be suspect.

Because it affirmed the trial court on the restraint issue, the Supreme Court also affirmed the award of fees.

Justice Pleicones dissented, noting:

[I]n my view, this history provides a strong basis for concluding that Appellant can be trusted to safeguard her child and has a consistent track record of having done so. Moreover, I disagree with the majority that Appellant has demonstrated a “pattern of deception and pursuit of her own interests over those of” her daughter.  The record indicates that Doe has fully accepted responsibility for his actions and unstintingly pursued rehabilitation. All of the expert testimony in the record is that he has been highly successful in doing so.  I would not deem Appellant guilty of deception when she sought to avoid disclosing information that was available in the public record and which she had no affirmative obligation to disclose.

To hold now, when the child is a young adult, that Appellant must prevent any contact, including supervised contact, between Doe and her daughter, appears to me unwarranted. I would thus modify the family court’s order insofar as it prohibits even supervised contact between Doe and the child.

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