When South Carolina codified child custody factors in June 2012 as S.C. Code § 63-15-220, I noted,“I do not see any reason why this statute should radically alter South Carolina child custody determinations.” My experience and the anecdotal experience of my peer [to date, no appellate opinion interprets or analyzes that code section] indicates that prediction to have mostly been accurate. However, this same experience demonstrates one way in which custody determinations have changed: it appears one parent’s willingness to encourage the other parent’s relationship with the child(ren) is becoming outcome determinative in cases in which it might not have been so even five years ago.
There are two specific provisions of § 63-15-220(B) that render this issue relevant. Factor sixteen is “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.” Sometimes, but rarely, when such parents relocate it is for safety reasons. Sometimes, such relocation is for good reasons that have little to do with that parent’s view of the other parent. However, often such relocations, especially if sudden and unannounced, are intended to thwart the other parent’s relationship with the child. In those circumstances courts have often made the relocating parent move back or simply changed custody to the other parent.
The more explicit provision of § 63-15-220(B) is factor six: “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.” In close custody cases, I am finding this provision to often be outcome determinative.
I recently tried a custody case in which both parents had strengths and weaknesses. Perhaps the other party’s greatest (relative) strength was that she had been the primary caretaker and was the more hands-on parent. However, her greatest weakness was her unwillingness to encourage my client’s relationship with the child. In contrast, my client had worked while his wife stayed home to raise their child (who was now just starting formal schooling) and tended to be less proactive. However, he was extremely good about encouraging the mother’s relationship with the child.
Twenty years ago, mother would have almost certainly obtained custody. While the court would have had concerns about her unwillingness to involve my client in the child’s life, it would have noted her history as the primary caretaker and her “hands on” approach to parenting and awarded her custody. The court would have hoped that resolution of custody would encourage this mother to be more supportive of the child’s relationship with the father, but it wouldn’t have been particularly surprised if that relationship slowly dwindled. It might have eventually held that mother in contempt if she did things that undermined the father’s relationship and were specifically prohibited or required under the order. However it would have been unlikely to incarcerate that mother or change custody for such contempt.
Even five years ago, I would have had a hard time getting this father custody. Yet, in 2016, father’s encouragement and mother’s discouragement of the child’s relationship with the other parent overcame mother’s track record as the primary caretaker and more “hands on” parent. Admittedly this case was somewhat extreme in the level of encouragement/discouragement. However, I hear reports from other attorneys and see examples at temporary hearings in which it appears the court has weighed this factor highly in custody determinations.
There are times when a parent rightly limits the other parent’s contact with the child(ren). However those times should be limited to when the other parent is unfit in some manner. Absent unfitness, a custodial parent should put his or her personal feelings towards the other parent aside and encourage that parent’s relationship with the child. Further attorneys should encourage parents to do so. I am litigating my custody cases with factor six (and, where applicable, factor sixteen) at the forefront of my presentation. Developing a track record of a client’s encouragement, and the other parent’s discouragement, is becoming increasingly outcome determinative.