Possibly correct but poorly reasoned custody and relocation decision from the Court of Appeals

The January 24, 2018 Court of Appeals opinion in Burgess v. Arnold is possibly correct but, in at least three important particulars, poorly reasoned.

Burgess stems from Mother’s appeal of a family court order that gave the parties joint custody with her having primary custody over all issue except education. That order required that she relinquish custody to Father if she moved to Florida, where her husband lives. Father cross-appealed the provision of the order that provided the custodial arrangement would resume if she moved back to South Carolina after moving to Florida.

The Court of Appeals opinion rules in Mother’s favor. It grants her sole custody and authorizes her to relocate with the child to Florida. Based on the fact pattern described–Father appears very manipulative and controlling and the child appears more closely bonded to Mother–this was possibly the correct result. However the Court of Appeals’ reasoning to reach this decision was highly flawed.

The first issue with the Court of Appeals opinion is that it fails to distinguish legal custody from physical custody in addressing the issue of custody and of Mother’s potential relocation. The Court of Appeals reversed the family court’s award of joint custody–and awarded Mother sole custody–without addressing what the family court’s award of joint custody actually meant from a physical custody standpoint. While joint physical custody would be unworkable if Mother moved to Florida, it’s not clear what physical custody arrangement the family court set. In simply reversing and awarding Mother sole custody, the Court of Appeals further left it unclear how much time Father should have with the child if Mother remains in South Carolina or if she moves to Florida. In the context of this opinion, I have no idea what Mother’s sole custody means for Father’s parenting time. Personally, I think the courts would have clearer orders if they avoided the term custody and instead used terms like “parenting time” and “legal decision making,” but I am not expecting this to happen any time soon.

The second flaw in this opinion is that it continues the South Carolina appellate court’s unwarranted resistance to joint custody. While case law certainly leads to a conclusion that joint custody is disfavored, our state legislature seems to fewer qualms with it. At some point our appellate courts need to heed our legislature.

In 1996 our legislature added subsection 42 to S.C. Code § 63-5-30, authorizing the family court “to order joint or divided custody where the court finds it is in the best interests of the child.” In 2008 our legislature enacted S.C. Code § 63-5-30, which begins, “The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor….” In 2012 our legislature enacted S.C. Code § 63-15-230(C), which reads, “If custody is contested or if either parent seeks an award of joint custody, the court shall consider all custody options, including, but not limited to, joint custody, and, in its final order, the court shall state its determination as to custody and shall state its reasoning for that decision.”

One might read these code sections and conclude that joint custody is not favored over sole custody. I do not see how one can read these code sections and conclude that sole custody is favored. Yet our appellate courts continued to reverse joint custody orders, finding such orders to be “disfavored.”

The third flaw in this opinion is how it addresses the burden of proof. Prior to this action being filed, the parties appear to have been operating under an informal joint custody arrangement without there being a formal custody order. One issue at trial and on appeal was whether this was an initial custody determination or a modification action. If it was a modification action, any party seeking a change from the status quo had a burden of proving a substantial change of circumstances; if it was an initial action, there was no such burden.

The majority opinion attempted to finesse the issue by holding that the family court could note the parties’ prior informal arrangement in reaching its custody determination. However such analysis was completely unnecessary for either the family court or the Court of Appeals to reach their decisions. Including this within their analysis muddied the burden of proof issues. A simple holding that the parties’ prior conduct is relevant but does not turn an initial case into a modification case would have sufficed.

Prior case law makes it clear that absent an actual prior custody order, such custody cases are treated as initial action. See Purser v. Owens, 396 S.C. 531, 534, 722 S.E.2d 225, 226 (Ct. App. 2011) (rejecting the notion the conduct of the parties created a de facto custody agreement sufficient to warrant the application of a change in circumstances standard in determining child’s custody). Judge Konduros, in her concurring opinion, recognized this. The majority did not.

One can never tell how strongly a court is shading the actual facts in reaching the conclusion it wants to reach. Assuming there was not much shading going on, the Court of Appeals’ resolution is reasonable. However, its analysis to reach this decision was flawed.

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