Tomlinson continues the appellate disfavor of joint custody

Posted Wednesday, November 13th, 2019 by Gregory Forman
Filed under Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The November 13, 2019, Court of Appeals opinion in Tomlinson v. Melton, 428 S.C. 607, 837 S.E.2d 230 (Ct.App. 2019), continues the appellate court’s disfavor of joint custody.

In Tomlinson, the parties entered a custody agreement at the time of their 2011 divorce that gave Father primary physical custody and final decision making authority but gave Mother every other week from Wednesday to Monday during the school year (along with alternating holidays and week-on/week-off during the summer). It required Mother to pay nominal child support and authorized de novo review of custody when the child started kindergarten. At the time of this agreement Father lived in Kingstree and Mother lived in Sumter.

When the child started kindergarten, Father filed for full custody, and requested increased child support. Mother counterclaimed for custody and child support. The family court preserved the status quo at the temporary hearing. During the litigation period, Mother obtained employment and purchased land (with the intention of building her residence) in Kingstree. At trial, the family court modified custody to a week-on/week-off schedule during the school year, but left Father the final decision maker. It required Father to pay child support and some of Mother’s attorney’s fees. It denied Father’s request to have Mother’s child support arrears act as a setoff to his support obligation, holding that Father’s plea for child support did not encompass a claim for reimbursement of arrears. After his petition for rehearing was denied Father appealed.

The Court of Appeals reversed the family court. It found that Father’s complaint for child support encompassed a claim for reimbursement or setoff of arrears, especially as both parties had testified as to the arrears amount. It held that Father should be entitled to a $6,000 offset on his child support obligation.

It also reversed the award of week-on/week-off custody during the school year. It looked to the South Carolina Supreme Court opinion of Scott v. Scott, 354 S.C. 118, 579 S.E.2d 620 (2003), which required “exceptional circumstances” to award brief alternating periods of custody, holding, “the family court made no specific findings of exceptional circumstances to justify divided custody, nor do we find any from our de novo review.” It noted, “[w]eek-to-week divided custody will rarely be in the best interest of the child, especially during the school year.” As additional justification for reversing the family court, it held:

[T]he record reflects both Mother and Father have a divisive relationship and fail to communicate effectively. The record reflects over 4,500 text messages, calls, and emails from Mother to Father where she regularly and frequently requests changes to the schedule. Further, both parties think the other is a bad influence on Child.

Because the Court of Appeals reversed custody, it remanded issues of child support and attorney’s fees.

Judge McDonald, in a concurrence, urged the Supreme Court to reexamine its holding in Scott, noting:

[I]t is time for our supreme court to reconsider this language disfavoring joint custody—along with any requirement that our family courts find “exceptional circumstances” to justify joint custody awards—to alleviate any concerns our family courts may have regarding the circumstances in which they may award “joint or divided custody” pursuant to the legislature’s grant of jurisdiction in § 63-3-530(A)(42).

I believe Judge McDonald’s analysis is correct and that the Supreme Court errs in continuing to disfavor joint custody. As her concurrence notes, the legislature enacted S.C. Code § 63-3-530(A)(42) in 1996 to give the family courts jurisdiction “to order joint or divided custody where the court finds it is in the best interests of the child.” At the time it did so, Supreme Court decisions disfavored joint custody but this subsection did not. Further, her concurrence notes, “language suggesting ‘divided custody is usually harmful’ or requiring a finding of ‘exceptional circumstances’ appears incongruous with Section 63-5-30 of the South Carolina Code, which provides:”

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 or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.

Whether the Supreme Court will use the Tomlinson case to reconsider its aversion to joint custody remains to be determined.

I would note that just yesterday I blogged on how the de novo standard of appellate review suggests the increased likelihood of getting beneficial results when appealing unfavorable custody and alimony determinations. Tomlinson is yet another data point supporting this hypotheses.

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