When Parents Seek to Reclaim Custody from Third-parties: Moore & Its Progeny (January 2011)
Material for South Carolina Bar’s annual Guardian ad litem training
There are two situations in which non-parents get involved in custody disputes with parents. The first are situations in which the parent has physical possession of the child and the non-parent wishes to obtain custody. The second situation is when the non-parent has had physical possession of the child for a substantial period of time and either desires a court order affirming the physical custody or where the parent seeks return of the child.
In the first situation, the parent’s fitness absolutely determines custody. “Once the natural parent is deemed fit, the issue of custody is decided.” Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781, 782 (1985). If the natural parent has physical custody of a child and is fit, no non-parent may be awarded custody. If that natural parent is unfit, a non-parent can be awarded custody, assuming the other parent is either unfit or not seeking custody.
In the second situation, a non-parent is more likely to be awarded or to keep custody. The South Carolina Supreme Court, in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989), set up a four-part test for deciding custody in these situation:
The Court should consider the following criteria in making custody determinations when a natural parent seeks to reclaim custody of his child:
1) The parent must prove that he is a fit parent, able to properly care for the child and provide a good home.
2) The amount of contact, in the form of visits, financial support or both, which the parent had with the child while it was in the care of a third party.
3) The circumstances under which temporary relinquishment occurred.
4) The degree of attachment between the child and the temporary custodian.
Moore type cases [in which a parent tries to regain custody from a third-party] often present wrenching choices. The parent-child relationship, which forms the cornerstone of most family formation, has long been recognized as worthy of constitutional protections. See e.g., Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923) (“liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.”). However, when a child has lived with a third-party for much of his or her life, it can be traumatic to remove that child from a stable care giving situation to return that child to his or her natural parents. The Moore factors are our Supreme Court’s attempt to balance these values when they come into conflict.
This lecture topic was inspired by a case in which the parties’ counsel asked me to be the guardian ad litem for a custody case between a grandmother and her own daughter where the grandmother had exercised physical custody of the child most of the child’s life. In discussing the initial investigation the attorneys wanted me to undertake, I realized they believed that if mother was fit, return of her daughter was almost automatic. In contrast, I believed that parental fitness was a necessary condition for the child’s return but believed that the child’s level of bonding to the parent and third-party was also a decisive factor. However my “belief” was based on my reading of the Moore factors and not upon any analysis of how these factors had been applied. My desire to understand how Moore had been applied is the basis for this research and this lecture. I start with the following table examining Moore and all subsequent custody cases in which a parent seeks to regain custody from a third-party (or in which a third party seeks to legally affirm the defacto custody that third party had been exercising). To the extent possible, the language on the Moore factors is taken directly from the language in the opinion.
What does it all mean?
A number of interesting observations from these ten cases:
Six of these ten appeals resulted in outright reversals of the custody determination and one resulted in a remand. That’s a 30% success rate in the family court. While it’s the cases in which the losing party believes there was error that tend to get appealed, I doubt there are other issues regarding family law in which the family court is being affirmed at such a low frequency.
Fitness seems to be an almost decisive factor: in eight of these ten reported cases fitness determined custody. Not surprisingly, a parent’s unfitness always resulted in the appellate court awarding custody to the third-party. Three cases fit this criteria: Shake, Kramer and Baker. In Shake and Kramer , the appellate court reversed the family court’s award of custody to the parent because it rejected the family court’s determination that the parent was fit.
It is noteworthy that the appellate courts could have reversed the family court in Shake or Kramer by finding that, even though the natural parent was fit, an analysis of the Moore factors indicated it was in the child’s best interests to remain with the third party. Instead the appellate courts supported these reversals by finding the natural parents were unfit. In doing this the appellate courts avoided awarding custody to a third party over a fit parent.
In five cases–Moore, Malpass, Sanders, Harrison and Dodge–the appellate courts awarded the parent custody after finding the parent fit. In Moore, Sanders, Harrison and Dodge, the appellate courts actually reversed the family court’s award of custody to the third-party. In all four of these cases the family court found the parent to be fit but awarded custody to the third-party. Thus, the reversals were not because the appellate court found these parents to be fit, while the family court did not, but because the family courts had applied the Moore factors to give third-parties custody over fit parents and the appellate courts applied these same factors to award the parents custody.
In one case, Hogan, the family court failed to make necessary factual findings so the Supreme Court remanded it. Remands to family court based on inadequate factual findings are routine and nothing regarding the Moore factors can be gleaned from the Hogan opinion.
In only one case, Hopkins, was a parent’s fitness or lack thereof not outcome determinative. In Hopkins, both the family court and the Supreme Court found father to be fit but they decided custody should be provided to the foster parents with an order establishing a plan for reunion for father and son and, if the plan is successful, that son shall be placed with father permanently. Of the six cases in which the appellate courts found the parent to be fit–Moore, Malpass, Hopkins, Sanders, Harrison and Dodge–Hopkins is the only one in which the child had never lived with the natural parent, which might explain the resolution of a reunification plan rather than an outright return to the natural parent.
In Harrison the guardian ad litem called an expert witness to testify regarding the child’s level of bonding with each party. In the case inspiring this material, after my initial investigation provided no evidence that mother was unfit, and the child appeared at least somewhat bonded with both parties, I obtained a consent order for the parties and the child to undergo an evaluation with a psychologist to determine the child’s level of bonding with each party. The case settled prior to the evaluation being undertaken but in a case in which the preliminary investigation shows the parent is fit and that the child is at least somewhat bonded with each party, the appointment of a bonding expert is probably recommended. A guardian is typically unqualified to determine the relative level of bonding between the child and each party and, if the child’s level of bonding is going to be an important factor in resolving the dispute, expert testimony is probably useful.
In a ten year period beginning with Moore (1989-1998), ten reported cases dealt with custody cases between parents and third-parties in which the case began with the third-party having physical possession of the child. Since 1998 a few cases have cited Moore, and other cases have cited the cases that cite Moore, but there have been no reported cases on this issue.
Twenty-one years after Moore there is still no reported decision in which our appellate courts have found a parent to be fit but, based on the passage of time and the child’s much closer bonding to a third-party, decided that it was in the child’s best interests to permanently remain with the third-party caregiver. The Moore factors would seem to anticipate third-parties keeping custody even when the parent is fit. Yet, from reading these ten cases it is unclear what circumstance might lead an appellate court to permanently award custody to the third-party over a fit parent. In four reported cases the family court awarded custody to a third-party over a fit parent only to be reversed by the appellate courts. The only two reported cases in which the appellate court reversed an award of custody to the parents, the appellate court based the reversals upon findings that the parents were not fit rather than findings that the other Moore factors mandated an award of custody to the third-parties.
Though a reading of the Moore factors wouldn’t indicate it, the appellate courts may be telling us that once a natural parent is deemed fit, return of the child–or, at least, attempted return of the child–is required.