South Carolina Court of Appeals issues unprecedented custody reversal

Posted Wednesday, July 22nd, 2020 by Gregory Forman
Filed under Child Support, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The July 22, 2020, opinion in Alukonis v. Smith creates new law on numerous issues regarding custody cases between parents and third-parties. Among the unprecedented outcomes in Alukonis are:

  • It is the first published opinion analyzing the factors in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989), to award custody to a third-party over a fit parent.
  • It is the first published opinion to analyze South Carolina’s De Facto Custodian Statute, S.C. Code § 63-15-60. In doing so, it establishes that such custodians have a “significantly higher burden” to obtain custody from a fit parent.
  • While it is the third published opinion to recognize a party as a psychological parent, it is the first published opinion to award custody to a psychological parent over parent. In doing so, it establishes that psychological parents have a “significantly higher burden” to obtain custody from a fit parent.
  • It is the first published opinion to find a party can be a psychological parent when that party is the same gender as the opposing party.

Alukonis involved a custody dispute between Maternal Grandfather (hereinafter Grandfather) and Father. Prior to Mother’s death, the child primarily lived with Mother and her family in Florida, with Mother occasionally bringing the child to South Carolina to see Father. Mother had mental health issues that impacted her parenting ability. Her family, especially Grandfather, assumed much of the parenting responsibility. After Mother committed suicide while in South Carolina, Father took physical possession of the child. Fearing Mother’s family would remove the child to Florida, he began preventing her family from visiting the child. Eventually Grandfather filed for custody and was awarded temporary custody. At trial, the family court found Grandfather met the criteria of De Facto Custodian but found Father was fit. It awarded Father primary physical custody and final decision making authority. It granted Grandfather secondary custodianship and extensive visitation. It awarded Father $10,000 in attorney’s fees (out of a total fee claim of $97,210.50). After Grandfather’s motion for reconsideration was denied, he appealed the custody and fee determinations and Father cross appealed the insufficiency of the fee award.

This opinion reversed the award of custody, granted Grandfather primary custody, and remanded the issue of attorney’s fees, while directing the family court to “set a visitation schedule for Father—in accord with the significant visitation Grandfather agreed in his testimony should be given to Father—as well as to consider Grandfather’s testimony concerning his willingness to absorb many of the costs associated with Father’s visitation.”

In reaching this decision the Court of Appeals confirmed the family court’s determination that Father was fit and that Grandfather had met his “clear and convincing” evidentiary burden of proving he was the child’s De Facto Custodian. It further found that Grandfather was the child’s psychological parent. In finding Grandfather was the child’s psychological parent, it noted Grandfather undertook “the obligations of parenthood by being affirmatively involved in Child’s life, assuming the day to day caretaking duties, and providing emotional support for Child on a continuing basis… Because Father abdicated his parental role for much of Child’s life prior to Kate’s [Mother’s] death, we believe he left a void there that was gladly and graciously filled by Grandfather.”

The Court of Appeals noted, “there exists a rebuttable presumption that the right to custody of a minor child automatically reverts to the surviving parent when the custodial parent dies.” It held that even when a party meets the criteria of De Facto Custodian or psychological parent, that party has a “significantly higher burden” to obtain custody from a fit parent. However it found that Grandfather met this significantly higher burden. The opinion has a lengthy factual recitation of why Grandfather met this burden. Basically, while Mother was alive, Father had a limited relationship with the child and a contentious relationship with Mother. Meanwhile, Grandfather was the primary caretaker during this same time period.

One can never fully trust the factual recitation in an appellate opinion as they are sometimes slanted towards the party in whose favor the court is ruling.  Even with the facts as laid out by the Court of Appeals, this was a close case.  I think the Court of Appeals is correct that there are times a third-party should be awarded custody over a fit parent and also agree there should be a very high burden on the third-party seeking to do this.  How high that burden should be is ultimately something for our legislature or Supreme Court to decide. Whether Grandfather met that burden isn’t something I can decipher from this opinion.

Assuming Alukonis is not subsequently modified it is a case I would expect to see it cited any time third-parties battle parents over custody.

One thought on South Carolina Court of Appeals issues unprecedented custody reversal

  1. Lawana Rice says:

    On August 17th, judges Thomas, Huff and McDonald issued this statement in regard to the Alukonis(grandfather) vs Smith (father) “ Return the child to the father and his family immediately. Braylon Anthony Smith arrive at Greenville Spartanburg Airport at 3:30pm on 8/18/20 accompanied by Steve Alukonis and was received by his father Wayne Keith Smith ,jr as ordered. Ironically, August 18th is the 5 year anniversary of his mother’s death. Kate can now Rest In Peace knowing her son is once again in the safe and secure environment where she would have him to be. On 8/6/20, a 10 year memory posted on Facebook to Katelyns friend who was also Braylons aunt. It made it very clear Katelyn and Braylon were loved and cared for by the Smith family dispite the circumstances that surrounded his birth. It is clear that they were gracious and willingly accepted and treated as sort of the Smith family and Braylon will always be. The only time Braylon has been in his grandfathers custody is the time the courts unjustly granted him. IMG_9175.JPG Attached is the face of the child with his father and cousins headed home.
    123_1.jpeg Attached is the Facebook memory that appeared on the aunts page 8/6/20.

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