Sheila R. appeal provides classic example of how to lose custody by undermining the other parent

Posted Thursday, November 3rd, 2011 by Gregory Forman
Filed under Child Custody, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions

A too sizable portion of my practice time is spent counseling custodial parents (typically mothers) not to undermine the other parent.  While part of my counsel is intended to prevent my client from inflicting psychological damage on his or her child, the primary motivation is to prevent my client from undermining his or her goal of keeping custody.  Typically such counsel is resisted–frequently with unconvincing denials; often with outright hostility. Still, I’d rather have such clients discharge me and lose custody with some other attorney than remain silent while they lose custody under my employment.

The November 2, 2011 Court of Appeals opinion in Sheila R. v. David R., 396 S.C. 41, 719 S.E.2d 682 (Ct. App. 2011) 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.

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