Court of Appeals holds mother’s abortion not relevant to custody determination (but 19 year old boyfriend is)

Posted Thursday, October 27th, 2011 by Gregory Forman
Filed under Child Custody, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The October 26, 2011 Court of Appeals opinion in Purser v. Owens, 396 S.C. 531, 722 S.E.2d 225 (Ct. App. 2011), highlights the problems that result when family court judges see themselves as moral guardians rather than determiners of a child’s best interests.

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.

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