The interaction of the De Facto Custodian statute and the Moore factors

There are numerous recurring issues in South Carolina family law that ultimately will need to be resolved by our appellate courts. One of the more interesting ones–because it is both relatively common and extremely consequential–is the interaction of the De Facto Custodian statute and the Moore factors.

The Moore factors were created by the 1989 Supreme Court case of Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989), which set up a four-criteria test for deciding when to return children to their parents when a non-parent had custody. Those factors were:

1) The parent must prove that he is a fit parent, able to properly care for the child and provide a good home.

2) The amount of contact, in the form of visits, financial support or both, which the parent had with the child while it was in the care of a third party.

3) The circumstances under which temporary relinquishment occurred.

4) The degree of attachment between the child and the temporary custodian.

Moore did not establish the supremacy of any one factor. In practice, the first factor–parental fitness–was often controlling. When the parent was unfit this wasn’t an issue: the family courts were obviously not going to return custody to an unfit parent. However when a parent was fit, the other three factors–especially the fourth one–would seem to caution the courts from returning custody when the child had a strong and enduring bond to the third-party. In practice, family court judges were overruled when they failed to return children to fit parents.

In 2008, South Carolina enacted a “De Facto Custodian” statute, § 63-15-60. That statute defined as a “De Facto Custodian,”:

[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

(1) has resided with the person for a period of six months or more if the child is under three years of age; or

(2) has resided with the person for a period of one year or more if the child is three years of age or older.

Someone who can prove he or she meets this definition by clear and convincing evidence “has standing to seek visitation or custody of that child.”

Many of the third-parties who have physical possession of a child meet the criteria of De Facto Custodian. The De Facto Custodian statute would appear to give such parties greater claim (than Moore does) to keep custody. Frequently, in custody cases between parents and non-parents, the non-parents will be much more stable and closely bonded to the child–but the parent will be fit. Under the Moore factors, custody would likely–if gradually–be returned to the parent. Since the De Facto Custodian statute gives such non-parents the right to seek custody, it seems less likely the court should return children to parents in such situations.

No appellate opinion resolves this issue. An unpublished 2017 Court of Appeals opinion in Lester v. Sanchez originally held that a De Facto Custodians “are not on equal footing with biological parents in a custody dispute.” However that opinion was then refiled to remove such language by removing the finding that Sanchez was a De Facto Custodian.

I support the line of United States Supreme Court cases that give parents a Constitutionally -protected liberty interest in raising their children. However, I also think it cruel to remove children, especially young children, from the only caregivers they have known to return them to a parent who was unable or unwilling to raise them during their infancy. The bond a child develops with a caregiver the first few years should only be broken under the most compelling circumstances–and I don’t think a biological parent finally getting fit is so compelling. To the extent the De Facto Custodian statute might hinder the removal of children from the persons they are most bonded to and return them to fit parents they may not know very well, I think that is a good thing.

Right now I have two cases where the balance between the Moore factors and the De Facto Custodian statement may be outcome determinative. I’ve had a half dozen similar cases the past five years. How the Moore factors and the De Facto Custodian statute should interact will ultimately be decided because some intrepid attorney appeals the issue after getting a disappointing result. The test case is surely out there awaiting some ambitious attorney’s attention.

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

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