A child custody reversal that should have been published (and remanded rather than reversed)

Child custody determinations are among the hardest family court matters to get reversed on appeal. Because custody decisions are based upon the weight the trial judge places on sixteen listed factors and a seventeenth catch-all factor, and because so much of the weighing of these factors can be based on the judge’s credibility determinations, appellate courts are typically reluctant to overturn the trial court’s custody determinations. Rarely am I optimistic when folks consult with me about bringing custody appeals. I doubt South Carolina averages one published custody reversal a year.

An unpublished July 22, 2015 Court of Appeals opinion in Huggins v. Pritchett presents a rare custody reversal. As such it should have been published. In Huggins, the parties had two children, ages 8 and 9. At trial, the judge, pursuant to Rule 22, SCRFC, privately interviewed both children in chambers. Based on this interview, the trial judge found that the younger child “has required tremendous attention and support since the divorce of the parties due to her special educational, medical and developmental needs.” Apparently determining that this child’s needs so taxed Mother that she could not provide the older child the necessary attention, the trial court changed custody of the older child to Father. Mother sought reconsideration and supersedeas. In denying Mother’s request, the trial court stated:

[A]ny error in reliance upon the children’s interview would in fact be error in reliance on the younger child’s pitiful and emotional pleas to stay with her mother which this court did in fact defer to. Therefore, any error would have favored the mother in the maintenance of custody of the younger daughter with her.

On appeal the Court of Appeals reversed the change of custody to Father, holding:

We find insufficient evidence in the record to support the family court’s determination that a substantial change in circumstances warranted a change in custody. To change a custody arrangement established by a family court, there must be a substantial change in circumstances and the change of custody must be in the best interest of the child.

Much of the family court’s order focuses on the change in circumstances with regard to the younger child, but it is not apparent how the younger child’s situation has impacted the older child. In particular, there is very little evidence to indicate that the extra attention the younger child requires is given to the detriment of the older child. The family court gave no indication of what information it learned through its discussion with the children during the in chambers interview.

Citations omitted.

While the apparent failure of the trial court to explain its reasoning would justify a reversal of the custody modification, it is unclear why this reversal did not remand the matter for clarification. It could well be that Father demonstrated a substantial change of circumstances to the trial court but that the trial court simply failed to explain its reasoning. Obviously something in the children’s interviews made the trial judge believe that changing custody of the older child to Father was in that child’s best interests.

Drafting a final order that contains sufficient factual findings to justify the result is a craft that attorneys need to master. It could be that the failure of Father’s trial attorney to draft an adequate order may be the reason Father lost on appeal. Huggins should have been published. It also should have been remanded.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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