South Carolina case law generally does not consider evidence of a parent’s adultery to be automatically relevant in determining child custody.  “A parent’s morality, while a proper factor for consideration, is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child.” Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704, 705 (Ct.App. 1987).   As noted by the Honorable Alex Sanders in his concurrence in that case “[w]e are not in the business of gratuitously judging the private lives of other people.” Id. at 707.

South Carolina family law attorneys and judges take this to mean that adultery, without more, is not to be considered as a factor in deciding child custody.  In Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228, 230 (1975), for example, mother had an extramarital affair and her boyfriend spent five nights in her condominium with the children present, yet the court still found it proper to award her custody.  In reaching this conclusion the Davenport court noted, “[c]ustody of a child is not granted a party as a reward or withheld as a punishment.”   Last year, in Moeller v. Moeller, 394 S.C. 365, 714 S.E.2d 898 (Ct. App. 2011), the Court of Appeals reversed a custody award to father and awarded custody to mother despite her adultery.

Yet unlike other types of sexual behavior that the South Carolina family courts often disapprove of, there’s a good argument that adultery–or at least adultery that pre-dates the parties’ separation or occurs shortly thereafter–is per se relevant on the issue of custody.  Its automatic relevance stems from the fact that adultery (possibly) demonstrates a failure or refusal to honor important commitments to one’s loved ones.  Sexual fidelity is, after all, a cornerstone of most spouses’ understanding of marriage and dishonoring this commitment is deeply hurtful for most spouses.

Again not considering adultery that greatly post-dates the separation, I believe adultery teaches us some important things about the adulterer.  First, it shows that person is willing to break important commitments to someone he or she vowed to love “until death do us part.”  Further it demonstrates that person was willing to dishonor that commitment understanding this would cause great pain to a loved one.  If a person is willing to treat his or her spouse this way, why expect that he or she won’t treat his or her child this way?

When I first began practicing family law almost twenty years ago, many family law practitioners, and a few family court judges, didn’t see domestic abuse as necessarily relevant to child custody.  “Just because a man beats his wife doesn’t mean he’ll beat his children,” was the explanation.  No one professes that anymore.   I think a similar analysis about keeping commitments–a spouse who dishonors a commitment to the other spouse about sexual fidelity is likely to dishonor difficult or inconvenient commitments to his or her children–is arguably accurate.  Moreover, just as witnessing a parent engage in domestic abuse teaches children that such abuse is acceptable, witnessing a parent dishonoring a commitment teaches children this behavior is acceptable.  Given these concerns any adultery that pre-dates or causes the separation should be considered relevant on the issue of child custody.

The facts of Veronica’s case are tragic.  She was placed with the Capobiancos shortly after her birth.  Four months later Brown, a member of the Cherokee nation and an Oklahoma resident, sought a finding of paternity and custody.  After a recent trial, the family court judge, applying the 1978 Indian Child Welfare Act (an act which I acknowledge knowing nothing about), ruled in Brown’s favor and ordered Veronica placed with her father.  Brown recently took Veronica from the Capobiancos to Oklahoma.  The South Carolina Supreme Court has accepted direct review of the Capobiancos’ appeal.  Meanwhile supporters of the Capobiancos hold public demonstrations and petition drives, with our state governor, Nikki Haley, telling the press, “My heart breaks for Matt and Melanie.”   Many of the commentators ask how removing a two year old from the only caregivers she has ever known and placing her with a stranger can be in the child’s “best interests,” with the implication that it cannot be.

To which I would retort, “so what?”  Or to be less flippant, “do we really want the state taking children away from their biological parents merely because it believes the child’s ‘best interests’ lie elsewhere?”   In custody battles between biological parents and third-parties, I think most of us would agree that we want to impose a high burden on the state before giving custody to third-parties.

For almost a century the United States Supreme Court has recognized that the due process clause of the 14th Amendment to the United State Constitution gives parents a protected liberty interest in raising their children.  For more information on this topic, see “Constitutional Limitations On Family Court Authority To Override Parental Decision Making.”  South Carolina case law recognizes that in order to remove a child from a biological parent and place that child with a third-party, one must first prove the parent is unfit. Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781, 782 (1985).   Even when the parent tries to obtain the child back from a third-party, the courts do not employ a pure best interests standard but instead employ the four-part test set forth in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989).   For more information on this topic, see “When Parents Seek to Reclaim Custody from Third-parties: Moore & Its Progeny.”

Most of us should be glad the courts don’t employ a best interests standard in custody battles between biological parents and third-parties.  If the courts employed such a standard, anyone who could claim to do a better job parenting then we do could, in theory, seek and obtain custody of our own children.  When my own first child was born, my wife and I were new residents of Charleston, South Carolina, and knew few people within the state.  We were both unemployed and deeply in (student loan) debt.  There were many people who were in objectively better circumstances to raise our daughter but, because we only needed to be fit parents to withstand such a challenge, we had no risk of losing custody of her to a third-party.  I suspect many first time parents are in similar situations.  It’s a good thing we don’t allow the government to always employ a best interests standard in deciding our own children’s custody.

Most Americans rightly deplore the child rearing practices of totalitarian societies in which children are seen as the property of the state and are encouraged to spy on their parents and report any parental deviation from the state orthodoxy.  We read fiction such as “Brave New World” as a dystopian warning against allowing the state, rather than parents, to raise children.  Preventing the state from imposing its own judgment of a child’s “best interests” against the wishes of a biological parent may result in occasional tragic stories such as Veronica’s (which might have been less tragic if the Capobiancos had agreed to let her live with her biological father immediately after he sought custody).  Veronica’s case might be ideal to debate the steps that a biological father of a child born out of wedlock should be required to undertake to develop his parental rights.  It might be a useful case to debate the balance between state/federal government and Indian sovereign rights.   But allowing the state carte blanche to place children wherever it wishes upon the state’s own determination of the child’s “best interests” is totalitarian social engineering.

Admittedly there’s some entertainment that’s clearly age appropriate or age inappropriate.  Few would argue that the latest Pixar movie is “age inappropriate” for a nine year old (though I bet some parents might).  Few would argue that pornography is not “age inappropriate” for that same nine year old.  Still, the “gray” area in this restraint is quite vast.  Further, these restraints seek to impose the family court’s general judgment about what is good for children over a parent’s judgment regarding a particular child’s needs and interests.

The vague nature of this language creates problems with enforcement.  In order to support a finding of contempt for violation of a court order, “[t]he language of the commands must be clear and certain rather than implied” Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 498 (1973).  An “R” rating is defined by the Motion Picture Association of America as “Under 17 not admitted without parent or adult guardian.”  Thus, arguably, it could be age appropriate for a parent to take a child of any age to an “R” rated moved because the child is with a “parent or adult guardian.”  In contrast, a “PG” rating is defined as “Some material may not be suitable for children.”  A seventeen year old is still a child; arguably, a PG movie might contain “unsuitable” material.  What about the “PG-13” rating, defined as “Some material may be inappropriate for children under 13”?   There’s much wiggle-room between “may be inappropriate” and “inappropriate.”  These restraining orders are frequently too vague to be enforced unless one is “lucky” enough to draw a judge willing to impose his or her own standards, in which case  a parent (sometimes one’s client; sometimes the other party) might be held in contempt for violating a vague provision of a court order

Further, these restraints impose the government’s own views of “appropriate” media upon parents, in violation of a parent’s constitutionally protected liberty interest in raising his or her children.  For completely justifiable reasons I have exposed my two daughters to differing entertainment at different ages because of their own unique interests and temperaments. Entertainment that might frighten or traumatize one ten year old, might delight and enlighten a different ten year old.

For perfectly valid and justifiable reasons I took my older daughter to see Sam Mendes’ version of Cabaret on Broadway at age 10 ½ and to see Stanley Kubrick’s “A Clockwork Orange” at the Savannah Film Festival at age 16.  I wouldn’t want a family court judge telling me I couldn’t.  While there were elements of Cabaret that even I felt were a bit age inappropriate, what I remember about these events are my daughter being able to interact with Neil Patrick Harris, who played the MC in Cabaret, after the show, and being enthralled with the Q&A with Malcolm McDowell after “A Clockwork Orange.”  In contrast my younger daughter finds even the television show “House” disturbing.  Thus, while she’s seen a few movies that are R-rated for sexual themes or language, we don’t take her to movies that are PG-13 rated for gore or horror.  Exposure to media and entertainment are parenting and judgment decisions that need to be based on the individual child, not a part of some uniform prohibition imposed by a family court judge.  Further it’s a parent’s right to balance the issue of exposure to performances that might be a bit too “adult” for a child against the desire to expose the child to rare or exceptional artistic experiences.

The few cases in which my client believed such a restraint was needed, we fashioned the restraint to be specific, with language such as “absent both parties’ consent, neither party shall expose the child to R-rated movies until the child is age 16” or “absent both parties’ consent, neither party shall allow the child to play teen rated video games until the child is age 12.”  Unlike a vague restraint against “age inappropriate entertainment,” such clear guidelines are easy to interpret and easy to enforce.

Absent a showing of harm, the government (which includes family court judges) shouldn’t be interfering with the constitutionally protected liberty interest parents having in raising their children. These restraints against “age inappropriate entertainment” should be resisted when imposed by the family courts and, when the parents agree to these restraints, they should be specific rather than vague.

The nature of family court is that judges rarely see ex-spouses who get along.  Family courts judges spend most of their time and energy resolving disputes.  Ex-spouses who co-parent children without conflict tend to appear in family court just once–and that’s to approve an agreement in which there’s no apparent animosity.  It’s the co-parenting ex-spouses who are perpetually fighting that the family court tends to see frequently and it’s these couples who tend to be memorable (conflict being more dramatic than cooperation).  Observing a skewed slice of humanity, family court judges become inured to seeing most ex-spouses as constitutionally incapable of getting along.

Thus, when a parent’s ex-spouse, especially an ex-spouse with whom that parent has co-raised a child, is willing to come to court and say what a wonderful and cooperative co-parent he or she has, it makes for very powerful testimony.  Ex-boyfriends or ex-girlfriends, especially those who have a child with the parent, can provide similar testimony, and such testimony is helpful.  But it is not as strong as similar testimony from an ex-spouse, because only an ex-spouse demonstrably loved the parent, at some point, enough to marry him or her.

The mere presence of the ex-spouse on behalf of one’s custody client communicates: 1) I loved this parent enough to marry him or her; 2) our love went bad to such an extent that we ended our marriage; 3) I still think enough of his or her parenting to come to court and support the custody claim.  Especially in the context of a family court that typically observes nothing but hatred and contempt between ex-spouses, that’s incredibly powerful.

In preparing custody cases one should always determine whether one’s client has an ex-spouse (or ex-boyfriend/girlfriend) who has raised children with one’s client, and consider whether that person might be willing to testify on the client’s behalf.

All of these questions are capable of definitive answer by case law or statute.  That none of them are is due to our legislature’s and appellate court’s continued–and inexplicable–preference for vesting great discretion in family court judges.  Huge swaths of family law–equitable distribution; alimony; child custody–vest the family court judge with tremendous discretion.   Child support is the one area of family law in which federal law requires clear guidelines and child support disputes tend to be less expensive to resolve than other disputes because attorneys can more reasonably predict outcomes.  However, when the courts have great discretion in fashioning decisions, it becomes much harder to predict outcomes, and gives parties more incentive to litigate.

These unresolved issues in family law range from the highly technical (treatment of subchapter S income that doesn’t increase a parent’s spendable income) to grandly philosophical (what is a father?).  Some of these questions have clear(er) answers in other states.  Yet, even for issues that call for clear rule setting (when should a party in default be allowed to seek relief?; when should the court employ shared custody child support guidelines) our appellate courts have merely vested our family courts with discretion without providing any guidance on what factors should shape that discretion.  With South Carolina being a state of below average median income, jurisprudence should encourage clear rules in order to reduce legal fees.  Too often our appellate courts favor the vesting of great discretion in family court judges over providing clear guidance to the family court bench and bar.  Unless the goal is to maximize judicial power, this prudential preference is inexplicable.

Divorce

1. Does having sex with one’s spouse during the one year separation period set the clock back to zero on the no fault ground for divorce?

2. What is the burden of proof for adultery?

3. How much detail does the other spouse need to know for adultery to be condoned?

4. Does any sex between the parties after one party has knowledge of the other’s adultery condone that adultery?

5. How much subsequent “fault” does there need to be to negate condonation?

6. Is “third base” adultery?

7. Is “second base” adultery?

8. How long can a spouse remain in the home after the last physical abuse incident without that physical abuse being considered condoned?

9. Are postnuptial reconciliation agreements valid?

10. Can the family court order a spouse out of the house on an ex-parte basis?

11. Is the law prohibiting adultery unconstitutional?

Alimony

12. If the burden of proof for an adultery divorce is “clear and convincing evidence” is that also the burden of proof to invoke adultery’s bar to alimony?

13. If, after the court issues a final order of separate maintenance or divorce, the supported spouse commits adultery, and that order is later vacated or reversed, does that adultery bar alimony?

14. If the parties enter a separation agreement that a supported spouse repudiates prior to court approval, would that supported spouse’s post-agreement adultery bar him or her from receiving alimony?

15. If the supporting spouse is not “at fault” for the breakup of the marriage and is willing to take the other spouse back, can the family court award alimony?

16. Is refusal to engage in sexual intimacies a fault factor in determining alimony?

17. Is having close personal friendship that one’s spouse disapproves of, especially if that friendship is with a member of the opposite sex, a fault factor in determining alimony?

18. Is there a retirement age for alimony obligors?

19. Do the statutory factors for setting alimony apply to actions to modify alimony?

20. How does length of a marriage affect the amount of monthly alimony?

21. Does length of marriage affect the amount of alimony, whether the alimony should be rehabilitative or permanent, or both?

22. If a spouse wilfully undertakes an action that permanently impairs his or her earning capacity, can the previous earning capacity be used to set alimony?

Paternity

23. When can a husband disclaim paternity of a child born of the marriage that is not biologically his but that he has raised as his own?

24. When can a wife disclaim a husband’s paternity of a child born of the marriage that is not biologically his but that he has raised as his own?

25. How should the court determine who is the “legal” father of a child when a biological father claims paternity of a child born to a married couple and both the husband and the wife want the child to the husband’s child?

26. How should the court determine who is the “legal” father of a child when that child is born of an intact marriage but is the biological child of another man and neither the biological father nor the husband want to accept legal paternity?

Child custody/visitation

27. In custody cases, does the family court have authority to make legal custody type decisions for a child (e.g., which school the child will attend; whether a child can get elective surgery) or does the court merely have authority to decide who gets to decide?

28. In custody cases, can the family court issue restraints against third parties (grandparents; step parents) that they do not consent to?

29. Does the non custodial parent have the right to delegate his or her visitation to a third party?

30. Is there a difference between child custody and guardianship of a child?

31. When should sibling visitation be awarded?

32. How many sexual partners in how short a time period does it take to make a parent’s sexual behavior “promiscuous,” and therefore relevant without a showing that the behavior affected the child?

33. Is a parent’s pornography use relevant on the issue of custody without any showing that this use had any effect on that parent’s parenting or on the child?

34. Can grandparent visitation still be awarded merely because the grandparent’s child is deceased?

35. If a seventeen year old moves in with the non-custodial parent does the family court have any authority to make the child move back?

36. Can one arbitrate child custody issues?

37. Does the restraint against exposing children overnight to unmarried romantic companions deny due process or equal protection to homosexuals (since they cannot marry)?

38. Is the guardian ad litem allowed to present hearsay statements of the child over one or both parties’ objection?

39. Can and should the court ever appoint independent counsel for an older child involved in a custody dispute?

40. Is having custody of one’s own child per se emancipation?

41. In non abuse and neglect cases, can the family court impose restraints on parents that neither party wants?

42. Can the court consider a parent’s religious observance, independent of ancillary issues such as that observance’s impact upon a child, as a factor in awarding custody?

43. How long does a child have to be in a third party’s physical possession before the Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989) factors become applicable?

44. What aspects of a parent’s homosexuality, if any, are relevant in custody determinations?

45. In custody battles between parties who are not the child’s parents, is preference given to someone who is a blood relative of a child?

46. In custody and visitation disputes between a parent and a third party, does the family court have to show harm before imposing restraints or obligations on a parent?

Child support

47. What factors should the court consider in setting child support when the parents’ combined income is outside of the guidelines?

48. Other than a history of late payment, what factors should the court consider in deciding whether to make a party pay support through the court (and incur a 5% administrative fee)?

49. If a parent wilfully undertakes an action that permanently impairs his or her earning capacity, can the previous earning capacity be used to set child support?

50. How should contribution towards private school tuition impact application of the child support guidelines?

51. How should child support be set when some of the parties’ children are in a shared custody situation and some are in a sole custody situation?

52. Other than number of overnights, what criteria should the family court use in deciding whether to use Schedule A or Schedule C child support guidelines?

53. When two mothers are seeking child support from the same father, should the first child support calculation be based on the oldest child or the first to file?

54. Should a parent’s undergraduate school loan payments impact income for setting child support?

55. Should a parent’s graduate or professional school loan payments impact income for setting child support?

56. Is subchapter S Corporation income used to pay taxes still income for child support purposes if the parent has a controlling interest in the S Corporation?

57. Is subchapter S Corporation income used to pay taxes still income for child support purposes if the parent does not have a controlling interest in the S Corporation?

58. Can the court order child support for a disabled adult child if that child had the disability before age eighteen but the condition only became disabling after age eighteen?

59. Is court-ordered support for a disabled adult child still constitutional after Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010)?

60. If an eighteen year old high school student moves in with the non-custodial parent, does that give rise to child support modification?

61. Can the family court make an initial child support determination for an eighteen year old who is still in high school?

62. Does evidentiary or proof laches remain a defense to child support or alimony obligations?

Equitable distribution

63. How much can the court deviate from a 50/50 division of marital assets in a short term marriage?

64. How can the family court take jurisdiction over the parties’ property without first determinating it is marital?

65. Is it just the owner’s intent or is it the parties’ intent that determines whether property is transmuted?

66. Can the family court award property to one spouse at a lower value than the other spouse is willing to take it for?

67. How should the court value and equitably divide pets?

Family court procedure

68. When filing to modify support or custody, is venue proper in the county of the final order, the county of the defendant’s residence, or both?

69. Unless the previous final order explicitly states it, how does one determine where a change of circumstances is “anticipated” or “unanticipated”?

70. Is an adverse finding from invoking a 5th amendment privilege against self incrimination mandatory or discretionary?  If discretionary, what factors should the court consider in exercising this discretion?

71. Is attorney-client privilege waived on attorney fee issues if a party is seeking attorney’s fees?

72. Is a mediator allowed (required) to testify if a party claims he or she was coerced into executing an agreement during the mediation?

73. Is a mediator allowed to inform the court that a party mediated in “bad faith”?

74. In responding to a request for production, who is responsible for retrieval and copying costs for records that are in a party’s control but not in that party’s possession?

75. What is the effect of default in family court?

76. Can the court reconsider temporary orders merely because a party disagrees with the ruling?

77. If child support and alimony obligations are judgments, why aren’t temporary orders on these issues immediately appealable?

78. Since temporary custody orders will become moot upon the issuance of a final order, why aren’t they immediately appealable?

79. Can one issue subpoenas duces tecum without an order of discovery?

80. Does one have a “due process” right to demand testimony at temporary hearings?

81. Is a statement that is signed and notarized but not “sworn” before a notary a valid affidavit?

82. Are all family court motions “temporary motions” as defined by Rule 21, SCFCR?

83. Can the family court issue a temporary order providing relief that is retroactive to the date of filing of the motion?

84. Does one have the right to ask leading questions of one’s client on “cross-examination” if the opposing party called the client as his or her own witness?

85. Is service of motions, affidavits or orders via facsimile or email valid service?

86. Does “ex parte communication” merely refer to communication with a judge that takes place without the other party’s knowledge or presence or does it refer to all communications that take place outside of court or formal motion proceedings?

87. When a family court judge questions a witness, can one raise evidentiary objections?

88. Where a motion for an order for protection from domestic abuse is brought in an ongoing action, does the hearing proceed via testimony or affidavit?

Abuse and neglect cases

89. Is the “preponderance of the evidence” burden of proof for abuse and neglect cases unconstitutionally low?

90. Does the child hearsay exception of S.C. Code §19-1-180 violate the 6th Amendment?

Attorney’s fees and costs

91. When child custody jurisdiction is based solely upon the child’s residence, and not upon the defendant’s residence, does the family court have jurisdiction to make the defendant pay the plaintiff’s attorneys fees?

92. When child custody jurisdiction is based solely upon the child’s residence, and not upon the defendant’s residence, does the family court have jurisdiction to require the defendant to pay any costs (such as guardian fees)?

93. Does Rule 54(d), SCRCP give a party a right to seek bifurcation of attorney’s fees, with that issue to be resolved after the final judgment?

94. Should the fact that the lower income party retained a higher charging attorney be a factor in awarding attorney’s fees?

Contempt

95. Does the “clear and convincing” burden of proof for contempt just go to proving contempt or does it also go proving damages?

96. Can contempt of custody, visitation and child related restraint issues truly be remedied by civil rather than criminal sanctions?

97. Are the parties’ abilities to pay fees a factor in awarding fees from a contempt action?

98. What is the proper procedure to enforce compliance with a court order when the other party’s non-compliance isn’t willful?

99. When an opposing party cannot comply with a provision of a final order that is non-modifiable, what remedies are available (that is, can the family court then modify the provision at the other’s party’s request)?

100. Can the “unclean hands” defense to contempt be used whenever the moving party has failed to fully comply with any provision of the order or is it only effective if the moving party’s non-compliance is on the same issue or frustrated the defending party’s compliance?

I first began representing Doug in post-trial motions and an appeal from a December 19, 2002 final order of the Honorable Jocelyn B. Cate (in what I understand from Doug was her first custody trial as a judge).  Mother brought this change of custody action in 2001 after she quit a high paying position in Nashville, Tennessee to return to Charleston, claiming she needed to move back because the parties’ daughters were having problems in Doug’s care.  In her order Judge Cate changed primary legal custody of his two daughters to his ex-wife and changed primary physical custody from him to 50/50.  In modifying custody, Judge Cate focused extensively on the wishes of the parties’ older daughter and “issues” the children were having in Doug’s care.  Judge Kaye Hearn (now Justice Hearn) affirmed this change of custody for these reasons in her July 29, 2009 opinion in Spreeuw v. Barker, 385 S.C. 45, 682 S.E.2d 843 (Ct. App. 2009).  It affirmed the change of custody despite the fact that “the children were doing well in school and healthy while in Father’s care”  [quotes come from the published Court of Appeals opinion, not from Judge Cate’s final order].

In setting child support, Judge Cate found mother was not voluntarily underemployed due to her leaving a high-paying job in Nashville to return to Charleston.  Judge Hearn affirmed, holding, “[t]he trial court did not err in refusing to impute income to Mother. The overwhelming evidence reveals the motivating factor prompting Mother’s resignation from her job in Nashville was the wishes of the parties’ oldest child.”

What the Court of Appeals was unaware of at the time it issued its opinion was that, in the intervening six years, mother had become estranged from the teenage daughter who, in 2002, had so badly wanted to live with her.  Meanwhile, daughter had resumed her strong relationship with Doug.  In the interim, that daughter had done time in rehab for alcohol abuse.  By July 29, 2009, she had righted herself and was attending University of South Carolina.  Doug has assisted her in her college expenses with little help from her mother.  She is due to graduate with honors shortly but has almost no relationship with her mother and has a great relationship with Doug.

Meanwhile, eleven days after the Court of Appeals issued its ruling, mother attempted suicide while Doug was out of the country and the younger daughter was in her care.  Rather then seek rehearing or certiorari on the appeal, Doug sought a change of custody in the family court.  On August 28, 2009, less than a month after the Court of Appeals’ decision, he was granted temporary sole custody of the younger daughter.  Yesterday’s final order gives him final sole legal and physical custody.  After the problems caused by his 2001 agreement giving mother joint legal custody–which was part of the family court’s and Court of Appeals’ basis to award mother primary legal custody–he was unwilling to agree to resume joint legal custody despite mother’s request.

What Justice Hearn also didn’t know and Judge Cate didn’t address was that mother has a history of mental illness, which culminated in this suicide attempt.  According to Doug, Judge Cate didn’t address these issues because she ruled at trial that mother’s mental illness wasn’t a “change of circumstances” and therefore Doug couldn’t raise her mental illness as an issue to defend mother’s request for a change of custody.  The Court of Appeals didn’t know of Judge Cate’s preclusion of this evidence because, according to Doug, his trial attorneys failed to preserve this issue.  Reading Judge Cate’s order or Justice Hearn’s opinion one would never know that mother suffered from serious–and at times untreated–mental illness.

As of November 3, 2011, mother has minimal relationship with either of her daughters and the parties’ situation looks not very different than it did on December 17, 2001, when the parties became divorced and their first custody agreement was approved by order of the family court.  After mother’s suicide attempt she eventually moved back to Nashville and took another high paying job.  Her child support obligation is based on the same earning capacity Doug unsuccessfully sought to have it set on in his appeal.  Other than having to pay a ton of attorneys’ fees and too much interim child support, he is basically in the position he would be in had he won every issue in the appeal or had mother never filed a modification action.  That the children have gone through a decade of ugly litigation and appear to be doing well is an ironic testament to Doug’s parenting (which Judge Cate and the Court of Appeals so easily dismissed).

Meanwhile Spreeuw v. Barker is frequently cited on the issue of Doug’s “uncooperative conduct” as a basis to award attorneys fees that would otherwise be excessive under the Glasscock factors.  My personal experience in almost nine years of representation is that he is very cooperative and that it is mother and mother’s attorney who are sometimes difficult to get information/cooperation from.  Then again, what do I know?

Unless Judge Cate or Justice Hearn read this blog, they will never know how their decision to change (or affirm the change of) custody affected this family, nor will they ever learn that many of the conclusions they reached regarding the daughter’s preference or the mother’s employment issues were technically accurate but actually faulty.   Most cases like this never come to the public’s or the court’s attention because no one writes about them.

I like both these judges and do not blame them for what is, in my opinion and only in hindsight, faulty decision making.  It is a systemic failure that there is no mechanism for judges to learn of the consequences of their decisions and therefore they continue to make these decision on an ad hoc basis.  Whether society is wise to allow such important decisions to be made on such an ad hoc basis is a separate issue from the quality of judging, but cases like Mr. Barker’s demonstrate how we experiment on people’s lives–and children’s lives–without even bothering to collect and analyze the data.  Some might consider this shameful.  I consider it profoundly disturbing.

The November 2, 2011 Court of Appeals opinion in Sheila R. v. David R. is a textbook example of how a parent’s engaging in behaviors that undermine the other parent can lead to a change of custody.  In Sheila R., the parties engaged in a five-day trial in September 2007 in which a very detailed guardian ad litem report documented numerous concerns regarding both parties.  In its final order, the family court made detailed “factual findings concerning the parties’, particularly Mother’s, disturbing behavior, with subsections devoted to the observations of Dr. Horne [the court-appointed psychological evaluator] and the family court.”  On the issue of custody:

[T]he family court recognized Mother had been the children’s primary caretaker prior to the separation, was an involved parent, exhibited adequate day-to-day parenting skills, and clearly loved the children.  Nonetheless, the family court found Mother was “not fit to have custody of the children” due to numerous demonstrations that she lacked appropriate parental judgment in matters involving Father and failed to recognize the negative impact her behavior had on the children.

As a result of these complicated findings, the family court awarded Father sole custody of both children but placed S.R. [the child at issue in this appeal as the other child has subsequently emancipated] physically with Mother.  In addition, the family court reserved jurisdiction over the issue of S.R.’s custody for a period of eighteen months, adopting a “wait-and-see” approach.  It further required Mother and S.R. to complete Parent and Child Transition classes and all parties to undergo family counseling.

On reconsideration, the family court expanded Father’s visitation with S.R., and established sibling visitation between S.R. and her sister.  This is, to my knowledge, the first use in South Carolina of § 63-3-530 (44) to establish sibling visitation, an issue I have previously blogged about.

Within that eighteen month period, both parties brought contempt actions against the other, with six of Father’s eight causes of action related to Mother’s alleged violations of the family court’s orders concerning custody and visitation.  None of Mother’s contempt claims involved child issues.

Following a trial on the parties’ contempt petitions, the family court entered an order finding both parties in contempt of court, awarding Father primary physical placement of S.R. effective immediately, and relinquishing its reservation of jurisdiction over S.R.’s custody.  The family court found Mother used S.R.’s physical placement with her to prevent S.R. from engaging in the team sports in which Father had enrolled her and to stop the sibling visitation ordered by the family court.  Furthermore, the family court found Mother’s inflexibility and refusal to cooperate undermined Father’s healthcare decisions as legal custodian.  Specifically, the order noted Mother refused to ensure S.R. cared for her teeth and pursued a costly and questionably beneficial growth hormone treatment for S.R. over Father’s objection.  According to the family court, Mother’s behavior constituted a “willful and wanton violation of the Final Order and was done out of disregard for the Court’s order and Father’s authority.” Finally, the family court found Mother failed to comply, albeit not willfully, with requirements that she deliver S.R. timely for visitation with Father.  The family court reasoned giving Father both sole custody and primary physical placement was in S.R.’s best interest:

This action is made absolutely necessary because of the on-going conflict between the Mother and the Father, who has legal custody, about the medical necessity for growth hormone treatment for the child; and the lack of cooperation of the Mother by not complying with the child’s extra-curricular activity schedules related to the swimming classes and the cross country running team that she was enrolled in by the Father.

The family court also re-appointed the guardian to conduct further investigation into “whether the growth hormone treatment sought by Mother on behalf of [S.R. was] necessary and in the best interest of the child.”  Mother appealed.

Mother’s first argument on appeal was whether the family court used its own standard to determine who should receive custody of S.R. and failed to take S.R.’s best interests into consideration when it subsequently granted Father full custody.  The Court of Appeals rejected that argument, stating “we believe it is clear the family court considered the peculiar circumstances before it and based its decision upon a carefully conducted best-interests analysis”:

In both the June 2009 order and the November 2007 order underlying it, the family court painstakingly recorded explicit factual findings related to S.R.’s best interests.  The June 2009 order cited Mother’s refusal to transport S.R. to the sporting activities in which Father had enrolled her, refusal to cooperate with Father in caring for S.R.’s health, and inability to drop S.R. off timely according to the court-ordered visitation schedule.  Concluding its factual findings, the family court found awarding Father physical placement as well as sole legal custody of S.R. was in S.R.’s best interest, was “absolutely necessary,” and would provide an immediate remedy to the child-related conflicts between Mother and Father.  The record fully supports both of these findings and the decision to award Father full custody of S.R.

We recognize there is some incongruity in the family court’s November 2007 order awarding placement of S.R. to Mother in spite of its extensive findings regarding Mother’s unfitness and inability to foster a relationship between S.R. and Father, as well as her otherwise poor judgment.

Clearly, the family court would have been fully justified in not placing S.R. with Mother initially.  In its November 2007 order, the family court described numerous disturbing incidents, including Mother’s unnecessary calls to law enforcement during Father’s visits (such as the call during S.R.’s tenth birthday party seeking removal of Father’s mother and another call during Father’s visitation with S.R. seeking to have Father and his brother removed from her home), Mother’s report to the Guardian that Father was “on drugs,” [In response to this allegation, the Guardian required Father to undergo a hair strand drug test, which revealed no use of illegal drugs.] and Mother’s employment of celebratory signs and gifts to curry S.R.’s favor.  The family court cited with concern Dr. Horne’s opinion that Mother and S.R. were in danger of developing an “enmeshed” relationship in which neither parent nor child could fully function independently of the other.  All of these findings militate in favor of limiting S.R.’s exposure to Mother.  Nevertheless, the court in this same order adopted a “wait and see” approach to the “custody of [S.R.]” and provided for counseling for all the parties for eighteen months.

In view of these facts, the June 2009 order simply announced the family court’s well-considered conclusion that Mother continued to exhibit a pattern of inflexibility and uncooperativeness in spite of the specific instructions and conditions the family court had imposed on S.R.’s placement with her.  Accordingly, we find the family court’s June 2009 grant to Father of physical and legal custody of S.R. simply confirmed that the original arrangement, which gave Mother physical placement of S.R. but Father legal custody of her, was not workable.

Mother also argued that the family court failed to consider S.R.’s wishes or appoint a guardian for her.  The Court of Appeals rejected this argument:

S.R. was nearly fourteen years old at the time of the June 2009 order and, therefore, old enough to form and communicate her own desires regarding custody.  However, we find her age and circumstances weighed heavily against considering her preference.  After conducting a thorough and detailed investigation prior to the 2007 hearing, the Guardian reported to the family court that Mother “[i]ndulged, petted and infantilized” S.R., while simultaneously subjecting S.R. to enormous pressure to view the parties as adversaries and protect Mother.  The Guardian further noted S.R. responded to Mother by becoming inappropriately clingy.  Both Dr. Horne and another witness who interviewed the parties and their children expressed concern that the relationship between Mother and S.R. was becoming enmeshed.  Dr. Horne specifically recommended that the family court assign S.R.’s custody preference no weight.  In view of this evidence, we conclude that under the particular circumstances present in this case, the family court did not err in failing to consider S.R.’s preference as to custody.

Finally, at oral argument, Mother argued that the family court lacked subject matter jurisdiction to reserve the issue of custody in its initial final order, in part “because the family court improperly placed its reservation of jurisdiction in the portion of the November 2007 order devoted to factual findings and not in the decree portion.”  The Court of Appeals rejected these arguments, noting that “the family court has jurisdiction over child custody disputes” under S.C. Code Ann. §§ 63-3-510(A)(1)(e), -530(A)(30) (2010) and that this reservation of jurisdiction did not implicate subject matter jurisdiction.

Interestingly enough, I handled a contempt action and appeal early in my career in which a family court judge had issued a final order giving custody to a mother but, based on concerns he had regarding mother’s hostility to father’s relationship with the children, reserved jurisdiction for six months.  When mother’s interference and hostility continued, father subsequently retained me to bring a rule to show cause that sought a change of custody.  After a two day trial, the court changed custody and mother appealed, raising issues similar to those Sheila R. raised.  After her petition for supersedeas was denied she dismissed her appeal though my client won a few issues on his cross appeal.  In the thirteen years since that custody change was made, I’ve been aware of no other case in which a court has changed custody from a final order based on a reservation of jurisdiction until this Sheila R. opinion.

However, clearly, interfering with the other parent’s relationship with a child remains an excellent method of losing custody.

South Carolina’s code defines adultery as “the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.”§ 16-15-70.  It defines fornication as “ the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried.” § 16-15-80.   The code does not define buggery other than to indicate that it can be done “with mankind or with beast.” § 16-15-120.

A review of these statutes indicates that lesbians are not violating any of them.   The fornication and adultery statutes both require “a man and woman.”  While buggery isn’t defined in the code, every definition I am aware of involves an anus and a penis and lesbians lack the latter.  So when a family court judge prohibits a lesbian from exposing her children to her girlfriend overnight, that judge isn’t doing so to prevent exposure of the children to “illegal activity”; he or she is merely imposing a moral judgment upon that parent.

However even for heterosexuals, there’s strong argument that these criminal codes upon which the family court justifies these restraints are no longer valid.   Though not incontrovertible, the 2003 United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003), appears to render these South Carolina criminal statutes unconstitutional.  In Lawrence, a five member majority found Texas’ criminal prohibition on homosexual sodomy to be unconstitutional, holding that private and consensual sexual acts between two adults are protected from criminal prosecution by the liberty interests under the Due Process Clause.  Justice O’Connor’s concurrence sidestepped the due process argument by noting Texas’ statute only criminalized homosexual sodomy and therefore its disparate treatment of homosexuals and heterosexuals violated the Equal Protection Clause.

Subsequent interpretation of Lawrence by state courts and lower federal courts have reached myriad, and contrary, conclusions as to what criminal codes related to sexual activities Lawrence renders unconstitutional.   However no reported cases that I can locate indicate that criminal prohibitions against fornication or adultery remain constitutional after Lawrence v. Texas outside of a military context (where fraternization issues and the need for cohesiveness have been used to justify criminalizing adultery).  For examples, see Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005) (Virginia’s fornication statute rendered unconstitutional by Lawrence); Thong v. Andre Chreky Salon, 634 F.Supp.2d 40 (D.D.C.,2009) (Virginia’s adultery statute rendered unconstitutional by Lawrence); In re J.M., 276 Ga. 88, 575 S.E.2d 441 (2003) (Georgia fornication statute rendered unconstitutional by Lawrence).

It is almost certain that South Carolina’s criminal prohibition against consensual buggery and fornication cannot pass constitutional muster after Lawrence.  It is possible that South Carolina’s adultery statute may still pass constitutional muster because adultery is not considered a victimless crime (the other spouse is often perceived of as a victim of adultery).   Prior to Lawrence, some state appellate courts found adultery statutes were not unconstitutional based upon just such an analysis.  See e.g., Oliverson v. W. Valley City, 875 F. Supp. 1465, 1484 (D. Utah 1995) (finding Utah’s criminal prohibition on adultery was valid based on adultery’s social costs); Commonwealth v. Stowell, 389 Mass. 171, 449 N.E.2d 357, 360 (1983) (taking note of adultery’s destructive impact on marital relationship in finding state could make adultery a crime).   For a fuller discussion of the impact of Lawrence on statutes criminalizing adultery see, The Validity of Criminal Adultery Prohibitions After Lawrence v. Texas.

Still, it is noteworthy that no state appellate decision has found criminal adultery statutes remain constitutional since Lawrence.  Further, in 1992, South Carolina’s Supreme Court abolished “the ‘heart balm’ tort of alienation of affections,” finding “that the torts of criminal conversation and alienation of affections have outlived any usefulness they may have possessed in regard to preventing the dissolution of marriages.” Russo v. Sutton, 310 S.C. 200,422 S.E.2d 750, 753 (1992).  Since the South Carolina Supreme Court abolished civil liability to an innocent spouse for adulterous conduct, it is unlikely that it would find the harm from adultery against an innocent spouse should lead to criminal liability.

There is also a reasonable argument that the fornication and adultery statutes violate equal protection in that they criminalize behavior for opposite sex couples that is not criminal for same sex couples.  Ironically, Justice O’Connor’s concurring opinion, designed to protect the rights of homosexual couples, could be utilized to protect the rights of opposite sex couples.

My own belief is that the family court’s imposition of restraints against exposing children to a parent’s non-marital sexual relationships has little or nothing to do with a general desire to not expose children to a parent’s illegal conduct (other than sex and drug use is there any criminal conduct the family court routinely worries about children being exposed to?).  Rather, I believe, the courts issues these restraints to impose their own vision of morality, in which any non-marital sexual conduct is immoral, upon all citizens of South Carolina.  However until some intrepid attorney litigates the continued viability of South Carolina’s criminal prohibitions on adultery and fornication we cannot really be certain.

Purser involved an initial custody adjudication of the parties’ autistic child.  The parties were never married and for the first six years of Child’s life Father’s involvement was sporadic, though he voluntarily paid child support.  When the Child was diagnosed with autism in 2004, Father was initially reluctant to accept the diagnosis.  Meanwhile Mother rearranged her life to devote her time to caring for Child (one expert testified that caring for an autistic child can be overwhelming for parents, especially a single parent).

In 2005, Mother began pursuing court ordered child support through the Department of Social Services.  Father then filed this custody action, claiming he could do a better job handling the Child’s autism treatment regime (the amount and variety of therapy an autistic child needs can consume thirty or more hours a week).  During the litigation, Mother, then age 35, began a relationship with a nineteen year old man with a prior marijuana conviction.  When she became pregnant with his child she decided to terminate the pregnancy.

At the 2008 trial, the family court judge awarded custody to Father despite finding that Mother had been Child’s primary caretaker.  Among  the judge’s reasons was Mother’s combativeness with school officials, her lack of access to more therapy for Child, and her lack of judgment.  That judge noted:

Other things I’m concerned about is the pregnancy with a 19 year old and abortion.  That was an irresponsible decision; two irresponsible decisions.  First being involved with a 19 year old when you are 36 or 35.  That’s irresponsible.  And then having an abortion.  That’s irresponsible.  I am concerned about the environment.

On appeal Mother raised two primary issues, contending the family court erred in treating this as an initial custody determination rather than requiring Father to show a substantial change in circumstances and further erred in considering her abortion in determining custody.

All three appellate court judges held that Mother’s abortion was not a proper consideration in this custody determination.  That Mother’s abortion was even considered by the lower court is ironic–and somewhat hypocritical–given that Father had, at one time, raised the possibility of Mother terminating the pregnancy of the Child at issue in this case.  The two judges in the majority remanded the matter back to the family court for consideration of the issue excluding Mother’s abortion.

Given that Father has had custody of the child for three years while this matter was on appeal (the opinion does not explain the extensive delay in this custody appeal, which is supposed to be expedited under current appellate court rules) and that Mother’s dating a younger man with a marijuana conviction apparently remain permissible considerations in custody determinations does anyone expect the family court to award Mother custody on remand?   I get little sense from reading Purser whether and why the family court thought Father could do a better job raising an autistic child than Mother had been doing.  When our family courts get moralistic they tend to lose sight of the best interests of the child.

Which is why, though I don’t like Judge Few’s reasoning in his dissent that Father needed to prove a change of circumstances to obtain custody, his proposed result–return custody to Mother pending a new trial–seems more just.

The issue of whether Father needed to prove a change of circumstances to obtain custody involved a debate on the meaning of Altman v. Griffith, 372 S.C. 388, 642 S.E.2d 619 (Ct. App. 2007) and Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975).  Altman stands for the proposition that S.C. Code § 63-17-20(B)–which places custody of a child born out of wedlock with the mother pending court order–does not mean that unwed mothers are favored in initial custody determinations.  Thus, an unwed father does not need to prove a substantial change of circumstances to obtain custody as the parties stand equally in an initial custody determination.  Davenport possibly stands for the proposition that explicit agreements regarding child custody that are not ratified by the court give rise to a changed circumstances analysis to modify the agreement.

Judge Few believed that Father has an explicit, though unwritten, agreement with Mother during the first six years of Child’s life that she would have custody.  He therefore read Davenport as requiring a change of circumstances for Father to obtain custody.  The majority, finding there was never an explicit custody agreement, declined to address whether a change of circumstances approach is proper when the parties have established a custody agreement but not a court order.  It noted the problems that would result from adopting Judge Few’s opinion:

Without some definite agreement, the family court is left to attempt to ascertain the point in time when the actions of the parties gave rise to a de facto custody agreement.  Only then could a court determine if the circumstances in existence at the time of the agreement had changed.  This simply requires too much guesswork and speculation.

The approach suggested by Judge Few would create tremendous additional litigation in initial custody determinations involving unwed parents.  Not only would the parties be fighting over who could better parent the child, they would also fight over whether the parties had an explicit agreement, when this explicit agreement was made, and what this explicit agreement entailed.  The beauty of Altman is that it draws a clean but reasonable line: if there’s no prior custody order, neither party is favored.

Still a majority opinion that leaves custody with Father is troubling.  Is the age of one’s romantic companion (assuming that companion is an adult) really a proper factor in a custody determination?  Is dating someone with any criminal record going to be a strong deterrent to obtaining custody?  How do such policies encourage stable family formation?  Why is the family court removing a child from its primary caretaker without some strong evidence that the other parent could do better?  By remanding without giving custody back to Mother, Purser avoids addressing these concerns.

McComb began when mother attempted to relocate with the parties’ then-four year old daughter from Columbia, South Carolina to Orlando, Florida.  Mother filed an action seeking custody and permission to relocate; Father counterclaimed for custody and requested that the child be required to remain in South Carolina.

From the opinion, it appears that prior to this action being filed, by mutual agreement of the parties, Father had typically spent time with the child Thursday evening through Sunday morning.  Father lived in Rock Hill and worked in Charlotte but exercised this visitation at property he owned in Columbia (where Mother and child lived).

Mother sought to relocate because she was eligible to teach school in Florida but not in South Carolina and because her new husband was a financial advisor in Orlando, where he owned a large home in an upper-middle class subdivision.  It was Mother’s intent for the child to attend a private school within walking distance of stepfather’s home.

The family court granted Mother’s request for custody and to relocate.  Father filed a motion to reconsider which the family court orally granted but then denied.  The family court also ordered Father to pay some of Mother’s attorney’s fees and issued an order which restrained the parties from having Child “on an overnight basis in the presence of an adult party of the opposite sex to whom the parties are not related by blood or marriage, or any individual with whom he or she is romantically involved.”

Father appealed and the Court of Appeals affirmed.  On the custody issue, the Court of Appeals rejected Father’s contention that the family court applied the now-abolished “tender years doctrine” in awarding Mother custody.  See S.C. Code Ann. §63-15-10. Instead it found that the family court properly awarded Mother custody because she had been the child’s primary caretaker.  The Court of Appeals further found that the relocation was acceptable because “Father has the means to travel to Florida to continue seeing Child the same amount he did when she lived in Columbia.”  The Court of Appeals approved the use of the Latimer factors in resolving relocation issues in an initial custody determination.  Because Mother was the prevailing party, the Court of Appeals affirmed the family court’s award of attorney’s fees.

The Court of Appeals rejected Father’s argument that the family court erred in reversing its oral ruling on his motion to reconsider, noting “[b]ecause it was an oral ruling, the family court was fully within its rights to change its decision in the written order.”

In an intriguing issue, the Court of Appeals affirmed the restraining order against overnight paramour exposure despite neither party requesting that relief in their pleadings.  The Court of Appeals found that this issue had been tried by consent pursuant to Rule 15(b), SCRCP because “[i]ssues were raised during trial as to adults of the opposite sex who were not related by marriage or blood to Child being present overnight around Child.”  The Court of Appeals refused to consider Father’s claim that this restraining order was improperly “broad and nonspecific” because Father failed to raise that issue in a Rule 59(e) motion to the family court before raising it on appeal.

I have previously criticized the family court for sua sponte issuing restraining orders that had not been requested by the parties. McComb might have been a nice opportunity to raise these issues had Father properly preserved them.