Custody to the bigger breeder

Posted Tuesday, February 12th, 2013 by Gregory Forman
Filed under Child Custody, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific

Unbeknownst to me until last week, on December 2, 2012 the South Carolina Supreme Court denied certiorari in the case of Moeller v. Moeller, 394 S.C. 365, 714 S.E.2d 898 (Ct. App. 2011), thus enshrining into South Carolina appellate case law one of the stupidest bases to award (heck, reverse) custody that our appellate courts have yet conceived.

One of the reasons the Court of Appeals in Moeller reversed the award of custody to Husband was that it had the effect of separating the parties’ two daughters from their older half-sister–Wife’s daughter from a previous marriage.  The Court of Appeals ruled that this was “split custody,” requiring exceptional circumstances before the family court should consider it.  This was the first time our appellate courts have applied “split custody” analysis to half-siblings in a child custody case.

Now that Moeller is settled law this case creates potential for all kinds of mischief.  If both parents have custody of children from other relationships, any award of custody will necessarily result in “split custody,” as the parties’ child(ren) will be separated from at least one set of half-siblings. What is the family court to do then?

Even more unsettling, while the factual scenario in Moeller involved an older half-sibling, nothing limits its reasoning to older half-siblings.  Can a party gain an advantage in a custody case by birthing another child and then arguing that awarding custody to the opposing party results in impermissible “split custody”?  I would hope not but Moeller can be read otherwise.

South Carolina’s family courts typically enforce an old-school morality.  Moeller encourages child bearing as an advantage in custody cases–including bastard child bearing and out-of-wedlock child bearing.  I cannot believe the appellate courts did not recognize the absurdity their rationale creates.

8 thoughts on Custody to the bigger breeder

  1. MJ says:

    Thanks! I missed that one.

  2. All other things being equal, I can see keeping half-siblings together as a tie-breaker; however, my recollection is that all other things in Moeller were not equal and that the father was entitled to a win on the merits. I probably should have re-read Moeller before posting this response but I did not.

    What is the difference between “bastard child bearing” and “out-of-wedlock child bearing” unless maybe you are referring to adulterine bastards, a concept taught by Mr. Dreher in domestic relations that I have not heard since the fall of 1967.

    Is a decision of the court of appeals really established law, even where the Supreme Court denies certiorari? While it may be precedent, it is certainly not binding on the Supreme Court.

    1. That’s exactly what I mean by bastard, child born of an adulterous relationship.

  3. California observer says:

    I am so glad I never got caught in a legal system with such perverse incentives. Divorce is hard enough when the law is helping you.

  4. Linda says:

    I have one right now where an adultering out-all-night drug -using (but presumably clean now) parent who absconded with the kids may get custody SOLELY because she birthed, out of wedlock, prior to marriage to my client, a child, who they brought up as my client’s child, but never formally adopted. Makes me sick but I can’t get him custody of the other child. I wish people would formalize these relationships (adopt) while things are good because the fallout is horrific, especially to a child who WANTS to be with the person they believe to be their parent. Just sickening.

  5. Theresa says:


    I appreciate this post very much, as you know. Sadly, our family court has already started interpreting this case to mean just that: a child born out of wedlock to an adulterous spouse gained advantage in her initial determination custody action. Was awarded custody of a much older child based, seemingly exclusively, on the minor child’s apparent “bond” with the new, half-sibling infant, thus allowing the adulterous spouse- not only custody – but relocation of the minor child out of the state and residence with the adulterous spouse’s newest paramour.

    Sadly, these cases, mainly for financial reasons, do not get to parade to the Court of Appeals to show it the (hopefully) unintended consequences of Moeller-esque type decisions. Feel like taking up an appeal on just cause alone? ;)

  6. Nancy Jo Thomason says:


    While I agree that the holding in the second part of the opinion might very well be used improperly in the future; I think your argument misses the bigger picture. I don’t know any of the facts of this case other than those in the opinon but I see the case as standing for the fact that an adultering mother does not necessarily equal a bad mother and that proving adultery does not “win” a custody case.

  7. Rob Thomas says:


    I agree with you overall, and the auditory portion does lead the child into thinking that should be a normal part or least an acceptable part of life (if they become aware of this fact).
    I, however, think there could be other factors to “the biggest breeder” in which attention should be brought. My wife and will be attempting and amendment to the custody for her oldest. We are, in fact,the biggest breeder but we also have a special needs child who advances socially and achedemically faster when his sister is here and regresses when she leaves (during summer visitation). This of course, along with her desire to live with us because of isolation and fear that her father installs in her would just be an additional affixation to the items worth considering. With the case you presented here though, it seems pretty black and white that the final ruling was not, and most likely will not be, the best ruling for the child.

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