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Who does South Carolina House Bill 4614 really benefit?

Yesterday two different family law attorneys emailed me seeking my thoughts about the recently-enacted South Carolina House Bill 4614. Since most of the family court legislation that gets proposed never gets passed, I don’t spend my time following proposed family laws.

However being informed that the bill had been enacted and being aware that various groups had been agitating for a law that made joint custody of children South Carolina’s default position, I decided to review the bill. With a few minor exceptions, this bill doesn’t modify existing law so much as codify existing case law and/or organizing existing statutes.

The minor change is that parties will be “required” to submit parenting plans, either jointly or individually, to the court at every temporary or final hearing. These parenting plans should “reflect[] parental preferences, the allocation of parenting time to be spent with each parent, and major decisions, including, but not limited to, the child’s education, medical and dental care, extracurricular activities and religious training.” S.C. Code § 63-15-220 (A). I use the word “required” in quotes because that same code section notes “the failure by a party to submit a parenting plan to the court does not preclude the court from issuing a temporary or final custody order.” The South Carolina Supreme Court is asked to “develop rules and forms for the implementation of the parenting plan.”

The remainder of the statute doesn’t really change the law. Section 63-15-210 defines joint custody and sole custody thusly:

(1) ‘Joint custody’ means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.
(2) ‘Sole custody’ means a person, including, but not limited to, a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.

Section 63-15-230 allows the court to award either joint or sole custody as it sees fit but does not express a preference between either. Rather it states, “[t]he court shall make the final custody determination in the best interest of the child based upon the evidence presented.” Prior statutory law neither favored nor disfavored joint custody but case law disfavored joint custody. Nothing in this code section modifies the standard by which the court is to determine custody.

Section 63-15-240(A) sets forth the court’s options in deciding custody but again does not require to court to favor or even consider these options. Section 63-15-240(B) is interesting in that it sets forth in one subsection the criteria the court should consider in determining custody. Previously such criteria were either contained within case law or scattered throughout the code. The criteria are sensible, thorough, and in line with current case law and code:

(1) the temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) the preferences of each child;
(4) the wishes of the parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
(6) the actions of each parent to encourage the continuing parent child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
(8) any effort by one parent to disparage the other parent in front of the child;
(9) the ability of each parent to be actively involved in the life of the child;
(10) the child’s adjustment to his or her home, school, and community environments;
(11) the stability of the child’s existing and proposed residences;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
(13) the child’s cultural and spiritual background;
(14) whether the child or a sibling of the child has been abused or neglected;
(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
(16) whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and
(17) other factors as the court considers necessary.

The most noteworthy thing in this list is the focus on each parent’s support, or lack thereof, for the other parent’s relationship with the child. This has not been a major focus in custody case law but three of these seventeen factors are explicitly concerned with that issue (6, 7 & 8) and one factor implicitly focuses on that concern (14).

Section 63-15-250 deals with electronic and telephonic communication with the child:

(A) when a court orders sole custody to one parent, the custodial parent, except in cases of abuse, neglect, or abandonment, should facilitate opportunities for reasonable telephonic and electronic communication between the minor child and the noncustodial parent, as appropriate, as provided for by court order if the court determines that this type of communication is in the best interest of the child; and
(B) when a court orders joint custody to both parents, each parent should facilitate opportunities for reasonable telephonic and electronic communication between the minor child and the other parent, as appropriate, as provided for by court order if the court determines that this type of communication is in the best interest of the child.

Section 63-15-260 grants additional rights of access to all parents:

Notwithstanding the custody arrangement and in addition to all rights and duties given to parents pursuant to Section 63-5-30, each parent has equal access and the same right to obtain all educational records and medical records of his or her minor children and the right to participate in the children’s school activities and extracurricular activities that are held in public locations unless prohibited by an order of the court or State law.

Finally, this bill creates “The South Carolina Family Court Study Committee” “to study the feasibility of tracking the outcome of contested temporary and final custody proceedings in the family court.” A report from this committee is due January 31, 2013.

Other than the parenting plan provisions of § 63-15-220, all provisions of this bill went into effect June 18, 2012 and apply to all new causes of action.  Section 63-15-220 goes into effect August 17, 2012.

Having googled “South Carolina House Bill 4614” while attempted to locate it, I noted many of the web sites that popped up were devoted to father’s rights and a few were devoted to libertarian causes. I can certainly understand why fathers would find joint custody compelling. Libertarians, I’m not so sure–perhaps they believe that joint custody is somehow less government? However with no stated preference for joint custody over sole custody and with South Carolina case law favoring sole custody, I do not see any reason why this statute should radically alter South Carolina child custody determinations.

However the parenting plan provision will require extra work, which means extra fees for South Carolina family law attorneys. We are the clear–if minor and unintended–beneficiaries of this new law.

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