Whose “morality” dictates what is in the best interests of the child?

South Carolina case law from as recently as May 2018 holds that the morality of a parent is a proper factor for consideration in custody determinations, limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child. The problem with this case law is that it leaves determinations of morality up to the individual views of 50+ family court judges. Not only might these judges have a different views of morality, but these views likely change over time.

When I began practicing family law in South Carolina a quarter century ago, there were two areas where my view of morality differed greatly from most family court judges. I saw nothing immoral about homosexuality per se. Outside of its illegality (which I did not support), I saw nothing immoral about marijuana use. This doesn’t mean that certain homosexual behaviors couldn’t be considered immoral (there are many sexual acts that can be considered immoral–rape, incest, infidelity, and coercive sex being obvious examples); it simply means that the fact that the activity was homosexual rather than heterosexual didn’t render it immoral. This also doesn’t mean that marijuana use can’t be immoral: excessive use that hinders one’s ability to meet one’s responsibilities/commitments is immoral and there’s a reasonable argument that illegal behavior is immoral if a law is merely wrong and not immoral (and I wouldn’t argue the criminalization of marijuana is immoral).

In the proceeding 25 years, if the views of family court judges on the morality of homosexuality haven’t changed, their rulings regarding homosexual parents have. Early in my career homosexuality was often a factor in custody determinations, especially if the child was exposed to the homosexual relationship. That stopped long ago. I cannot recall the last time some attorney has told me about custody being changed due to a parent’s homosexuality but it certainly hasn’t happened 2014, when gay marriage became authorized in South Carolina.

I suspect a similar process will take place in the next 25 years over the morality of marijuana use. As medical marijuana becomes legal in the majority of the United States, recreational marijuana use becomes legal in an increasing number of states and countries, and as older generations who disapprove of its use are replaced by younger generations who accept its use, it will become harder for marijuana use to be seen as a legitimate basis to change custody, let alone to require a parent’s visitation be supervised or to remove a child from a parent and place that child in foster care.

I understand the argument that it is marijuana’s illegality that renders it a impediment to custody. One used to hear similar argument regarding homosexuality–it wasn’t until 2003 that the United States Supreme Court held that laws criminalizing consensual homosexual conduct were unconstitutional. However there’s a lot of illegal activity that family court judges seem to be less concerned about–driving over the speed limit or not declaring cash to the IRS being common examples. The parade of perjury that happens in their courtrooms is an obvious example of illegal behavior that should greatly concern family court judges. Yet I see it happen regularly without judges being that bothered. I’ve certainly never seen perjury be the reason a family court judge changed custody or supervised a parent’s visitation.

Did the morality of homosexuality change in the past 25 years or did South Carolina conservatives finally recognize that the behavior wasn’t per se immoral? I believe the latter. I wouldn’t be surprised if we see a similar change in the views on the morality of marijuana use in the next 25 years.

This raises an important jurisprudential point. If views of morality can change this substantially within a generation, should we be using views of morality–especially views that are not held by an overwhelming majority of the populace–to determine child custody?

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