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Fighting the Morality Police in Family Court Custody Cases (September 2005)

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Material for South Carolina Bar “Hot Tips” Lecture, September 2005.

I perceive two recent trends in child custody and visitation cases that I believe should be resisted.  The first is the use of a parent’s sexual behavior to limit visitation or withhold custody even when there is no evidence that this behavior had any effect on the child.  The second is the use of restraining orders to substitute the court’s judgment of a child’s best interests for a parent’s judgment of a child’s best interests.  I see both of these trends as the court’s attempt to implement its own view of moral behavior as having the force of law.  I believe these trends are contrary to law and should be actively resisted.

Sexual Behavior as a Factor in Custody or Visitation

A parent’s sexual behavior, by itself, should not be a factor in custody or visitation decisions.  “Custody of a child is not granted a party as a reward or withheld as a punishment.” Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228, 230 (1975).  In Davenport, 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.

“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) (affirming lower court’s refusal to change custody where change of custody claim was based on mother’s homosexuality).  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.[1]

In Clear v. Clear, 331 S.C. 186, 500 S.E. 2d 790, 792 (Ct. App. 1998) the Court of Appeals affirmed the lower court’s denial of father’s request for a change of custody based on mother’s topless dancing because there was no evidence that her occupation adversely affected the welfare of the child.  Last year, in Brown v. Brown, 362 S.C. 85, 606 S.E.2d 785 (Ct. App. 2004), the Court of Appeals affirmed the lower court’s award of custody to husband despite his adultery.

These are not aberrational cases.  The Davenport language (or similar variations thereof) has been cited in eleven subsequent cases, including the other three cases cited above.  Yet litigants and attorneys still attempt to use a parent’s sexual conduct, standing alone, as a basis to deny custody or restrict visitation.

A parent’s sexual conduct is clearly relevant in two circumstances: 1) the child has been the recipient of, or exposed to, the parent’s sexual conduct; and 2) the parent’s sexual conduct has prevented that parent from fulfilling his or her parenting responsibilities.  Absent such circumstances, it is hard to see how a parent’s sexual behavior adversely effects a child.   Where the other parent’s sexual behavior will be made a factor in a custody or visitation case counsel should be prepared to show how that behavior impacted the child.  When representing a parent whose sexual behavior will be made a factor, counsel should be prepared to show that the behavior did not impact the child and then resist any attempt to use that parent’s behavior in the court’s determination of custody or visitation.

Morality Based Restraining Orders

There are clear limitations, based on the 14th Amendment of the United States Constitution, on the family court’s authority to issue any restraining order merely on the belief that such an order will benefit children. “[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.” Troxel v. Granville, 530 U.S. 57, 72-73 (2000). Further, “there is a presumption that fit parents act in the best interests of their children.” Id., at 68.

Each court has certain restraining orders it imposes uniformly in almost all custody and visitation cases.[2]These restraining orders vary from state-to-state and within South Carolina from county-to-county.   Where I primarily practice (Charleston, Berkeley and Dorchester Counties), the court routinely issues restraining orders against exposure to domestic violence, exposure to excessive alcohol use, prescription drug abuse or illegal drug use and against exposing the child to disparagement of other parent or the other parent’s family.  S.C. Code Ann. § 63-3-530(12) is probably the best source of the family court’s authority to issue such orders as it provides the family court exclusive jurisdiction “[f]or the protection … of … dependent minors in proceedings properly brought before it for the support of a spouse or child.”[3] These restraining orders are appropriate as they seek to prevent actual harm to the child.  While the United States Supreme Court has not yet decided whether actual harm must be shown to override a fit parent’s decision making, it is clear that preventing actual harm justifies an exercise of state power over children.  See Troxel, 530 U.S. at 73-74.

Somewhat more problematic are the standard restraining orders that are not designed to prevent clear harm to the child, such as the restraining order prohibiting a parent from exposing the minor child to members of the opposite sex, unrelated by blood or marriage, overnight.[4] Here the research is less clear on whether such exposure is harmful to children.

Even more problematic is a recent trend towards restraining orders that prevent a parent from “exposing the minor children to sexually explicit conduct, language, TV, videos, movies, books, photographs, or materials of any kind,” restraints against exposing children to “violent media” or “age inappropriate media” and even restraints against exposing the minor children to “immoral conduct.”  Such orders simply substitute the court’s judgment over a child’s bests interests over a parent’s judgment.

Because “sexually explicit” or “violent” media can mean different things to different people, having a prohibition against such exposure is subject to all sorts of interpretations.  To some persons, “sexually explicit media” could include PG movies that show kissing; to others, it does not involving anything short of pornography.  A similar problem exists with exposure to violent media.  To some persons “violent media” could mean the “Star Wars” movies; other parents believe “Grand Theft Auto” is an appropriate video game for older teenagers.   While a parent clearly cannot violate the law in exposing their children to certain media (such as taking minor children to NC-17 or XXX rated movies), ultimately it is a parent’s decision (and not the court’s business) as to what types of media a child may be exposed to (so long as such exposure does not violate criminal laws).

Even though a restraining order against exposing a child to “immoral conduct” sounds innocuous, it is an invitation to litigation and a trampling of parental rights.  Is taking one’s child to visit the home of a family member and his or her live-in lover exposure to “immoral conduct”?  Even in PG rated moves, characters often behave immorally.  Is taking a child to these movies exposure to “immoral conduct”?

In the guise of protecting children we may be creating a system in which the government (through the family courts) makes intrusive and intimate decisions about how we raise our children.  Allowing the family court to impose its judgment of morality on fit parents is an abuse of power that needs to be resisted.

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[1]That language was subsequently cited in the majority opinion in Cartee v. Cartee, 295 S.C. 103, 366 S.E.2d 269, 270 (Ct.App. 1988).

[2]How the court even has the authority to act in loco parentis and issue such restraining orders when neither parent requests them is problematic in itself but beyond the scope of this material.

[3]“The family court is a statutory court created by the legislature and, therefore, is of limited jurisdiction.  Its jurisdiction is limited to that expressly or by necessary implication conferred by statute.  The jurisdictional authority of the court is set forth in the Children’s Code.” State v. Graham, 340 S.C. 352, 532 S.E.2d 262, 263 (2000).   Thus, if the family court lacks statutory authority to issue a particular restraining order, it lacks jurisdiction to do so.

[4]The court may also lack jurisdiction to issue restraining orders where neither parent requests them. “South Carolina courts, like the federal courts, require a justiciable case or controversy before any decision on the merits can be reached.” Lennon v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906, 908 (Ct.App. 1998). ‘[T]he basic inquiry to determine whether there exists a case or controversy is whether conflicting contentions of the parties present a real, substantial controversy between parties having adverse legal interests.” Crocker v. Barr, 303 S.C. 1, 397 S.E.2d 665, 670 (Ct.App. 1990) (Goolsby concurring).  Where neither parent requests a particular restraining order, the court’s jurisdiction to issue it is questionable.