Should I stay or should I go?

Posted Friday, September 14th, 2018 by Gregory Forman
Filed under Child Custody, Jurisdiction, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

With Hurricane Florence slowly approaching Charleston and with South Carolina’s northeastern coast under a mandatory evaluation order, I’ve spent the past few days with my office closed fielding a number of questions from current clients regarding evacuation and visitation in the midst of unpredictable weather conditions.

Most of these questions address visitation issues and my advice is easy and pretty consistent. For custodial parents who intend to evacuate but are considered about “denying” the other parent court ordered visitation, I suggest offering that parent the visitation if they evacuate to the same location and offering make up visitation if that parent isn’t evacuating to the same location. I’d find it hard to believe that any family court judge would hold a parent in contempt for evacuating in the midst of a mandatory evacuation.

For the custodial and non-custodial parents who are not evacuating but seeking advice on visitation exchanges in the midst of the hurricane, I suggest doing the exchange if weather and road conditions are safe and forgoing the exchange if these conditions are dangerous until condition permit. Again, I’d be shocked if any family court judge found a parent in contempt for not doing an exchange when weather and road conditions rendered travel dangerous.

A few of these question are from non-custodial parents who are not evacuating but where the custodial parent intends to (or has) evacuated with the child. I tell these parents that the parent with primary legal custody has the right to decide. If the custodial parent’s decision to evacuate means the non-custodial parent forgoes visitation, the best he or she can hope for is makeup visitation.

The hardest questions I received (and one I cannot really answer) was from custodial parents deciding whether or not to evacuate. From a legal perspective, the decision to evacuate is the most defensible. No officer of the state (which is what family court judges are) can fault a parent for following a state-ordered mandatory evacuation. However, for many Charleston residents, including many of my fellow family law attorneys who have children, the decision not to evacuate was defensible. At no time has it looked like Charleston would suffer from worse conditions than we survived from Floyd, Matthew or Irma. Some tropical force winds, a few feet of storm surge, and a few inches of rain simply don’t justify evacuation for folks living in solid housing, on relatively high ground (there is no high ground in Charleston), and with good hurricane supplies and planning.

However, these parents are rightly concerned that their decision not to evacuate will be used against them by the non-custodial parent and that a family court judge will later find their failure to evacuate a sign of parental neglect. I wish I could tell such parents not to worry but that would be unjustified.

For folks who’ve subjected themselves to the family court’s decision making process on custody, their decisions are always subject to second guessing–judgment–from a family court judge. Some family court judges think they have the right to substitute their judgment for a fit parent’s judgment. Others–most–take a less rigid approach.

The irony is that when family court judges get reviewed on procedural or evidentiary issues–the classic “judgment calls”–they are reviewed on an “abuse of discretion” standard. This means the appellate courts don’t overrule such decisions merely because they disagreed with the lower court decision. Rather, the appellate courts determine whether the family court judge understood and weighed the options, and came to a defensible conclusion, before reaching a decision. If the family court judge engaged that process, the decision is sustained even if the appellate court might have concluded differently.

One might suggest a similar “abuse of discretion” standard in analyzing custodial parent decision making. So long as that parent understood the options, weighed the options, and came to a defensible decision, the family court judge should not hold that decision against the parent. Custodial parents should not be deciding whether to evacuate upon concerns that a family court judge might later second guess them.

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