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Custody to the bigger breeder

Unbeknownst to me until last week, on December 2, 2012 the South Carolina Supreme Court denied certiorari in the case of Moeller v. Moeller, 394 S.C. 365, 714 S.E.2d 898 (Ct. App. 2011), thus enshrining into South Carolina appellate case law one of the stupidest bases to award (heck, reverse) custody that our appellate courts have yet conceived.

One of the reasons the Court of Appeals in Moeller reversed the award of custody to Husband was that it had the effect of separating the parties’ two daughters from their older half-sister–Wife’s daughter from a previous marriage.  The Court of Appeals ruled that this was “split custody,” requiring exceptional circumstances before the family court should consider it.  This was the first time our appellate courts have applied “split custody” analysis to half-siblings in a child custody case.

Now that Moeller is settled law this case creates potential for all kinds of mischief.  If both parents have custody of children from other relationships, any award of custody will necessarily result in “split custody,” as the parties’ child(ren) will be separated from at least one set of half-siblings. What is the family court to do then?

Even more unsettling, while the factual scenario in Moeller involved an older half-sibling, nothing limits its reasoning to older half-siblings.  Can a party gain an advantage in a custody case by birthing another child and then arguing that awarding custody to the opposing party results in impermissible “split custody”?  I would hope not but Moeller can be read otherwise.

South Carolina’s family courts typically enforce an old-school morality.  Moeller encourages child bearing as an advantage in custody cases–including bastard child bearing and out-of-wedlock child bearing.  I cannot believe the appellate courts did not recognize the absurdity their rationale creates.

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