Court of Appeals issues opinion involving unusual three-way custody/visitation battle between non parents

Posted Wednesday, August 19th, 2020 by Gregory Forman
Filed under Attorney's Fees, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The August 19, 2020 Court of Appeals opinion in Turner v. Thomas, 431 S.C. 527, 848 S.E.2d 353 (Ct.App. 2020), involved a highly unusual custody and visitation dispute between a Maternal Grandmother, a Maternal Grandfather, and a Psychological Parent.

Mother began dating Garrand when she was seven months pregnant with the Child at issue. Mother, Garrard, and Child lived together for most of the Child’s first 2 ½ years of life. While Garrard was obviously not the Child’s biological father, paternity of the Child was never established.

Mother died unexpectedly in a car accident. The Child continued to live with Garrard for a few weeks, at which point the Grandparents (who were divorced and did not live together) informed him that the Child would live with Grandmother. Grandmother then filed this action seeking custody. With Grandfather’s consent, the court awarded Grandmother temporary custody. Garrard then sought to intervene to seek custody or visitation. Various temporary orders issued altering Grandfather’s and Garrard’s visitation rights.

At trial, the family court found Garrard was a de facto custodian and psychological parent, awarded Grandmother custody, granted Grandfather and Garrard visitation, ordered Grandfather to pay some of Grandmother’s and Garrard’s attorney’s fees, and order Grandfather to pay 50% of the guardian’s fee. After his motion to alter or amend was denied, Grandfather appealed.

The Court of Appeals, examining the four-prong test of Middleton v. Johnson, 369 S.C. 585, 594, 633 S.E.2d 162, 167 (Ct. App. 2006), affirmed the family court’s finding that Garrard was a psychological parent. It was undisputed that the Child and Garrard lived in the same household for 2 ½ years. It found Mother consented to Garrard establishing a parent-like relationship with the Child, as he lived with the Child for almost all of the Child’s life, and there was no other paternal figure for the Child. The evidence showed that Mother encouraged Garrard to take on a parental role. Garrard assumed a care-taking role for the Child and contributed to the Child’s financial support: both directly and, by covering many of the household’s expenses, indirectly. The Court of Appeals held that 2 ½ years was sufficient time to establish a bonded parental relationship with the Child.

Grandfather also objected to the submission of one of Mother’s Facebook posts stating that Garrard was “such a great father to [Child],” arguing it was inadmissible hearsay. The Court of Appeals held it was properly admitted, pursuant to Rule 803(3), SCRE, as a statement of Mother’s existing state of mind. It further held that any error was harmless as this post was cumulative to other evidence that Mother consented to and fostered a parent-like relationship between Garrard and Child.

While Grandfather objected to the family court considering evidence of Garrard’s relationship with the Child after this action commenced, the Court of Appeals found it was proper to consider this evidence in determining visitation, and that the family court had not considered this evidence in determining Garrard was a psychological parent. It declined to address whether the family court may properly consider evidence of the existence of a psychological parent-child relationship arising after an action is filed.

Grandfather also appealed the finding that Garrard was a de facto custodian. The Court of Appeals declined to address that issue because its finding that Garrard was a psychological parent was sufficient to award him visitation.

Grandfather appealed the award of custody to Mother. However the evidence showed that Grandmother was better able to care for the Child and was more willing to facilitate Child’s relationship with others. Thus it affirmed custody.

Grandfather appealed the requirement that he pay $3,500 of Grandmother’s attorney’s fees (which totaled $14,647.81) and $6,500 of Garrard’s attorney’s fees (which totaled $26,159.46). Noting the successful results Grandmother and Garrard obtained, which Grandfather opposed, and Grandfather’s greater ability to pay fees, it affirmed this award. For the same reason it affirmed the requirement that Grandfather pay 50% of the guardian ad litem’s fees.

A custody case in which no party is a biological parent is pretty unusual and there are not many published opinions finding someone to be a psychological parent (although this is the second one from the Court of Appeals in under a month). Published guidance on such issues is always welcome.

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