Daily finds Court of Appeals digging in the weeds of a multi-state visitation schedule

Posted Wednesday, February 10th, 2021 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 February 10, 2021, Court of Appeals opinion in Daily v. Daily, 432 S.C. 608, 854 S.E.2d 856 (Ct.App. 2021), sees that court examining the minutia of a visitation schedule for a non custodial parent in Ohio for children who primarily reside in Florida.

Daily began as an action brought by Mother to relocate with the parties’ daughters from Pickens, South Carolina to Gainesville, Florida. At that time Father was living in Atlanta, Georgia. Mother, a professor, sought the move because she received a job offer at University of Florida. On a temporary basis the court allowed the move and appointed a guardian. Father then moved to Cincinnati, Ohio, without first informing Mother or the guardian.

Shortly before trial the family court ordered Father to undergo a psychological evaluation. He refused to do so. The parties filed rules to show cause against the other which were consolidated with the final hearing. After trial, the family court issued a final order finding the joint custodial arrangement was no longer in daughters’ best interest, granting Mother sole custody and awarding visitation to the Father. It also instituted a “Parallel Parenting Plan”and required the parties to communicate exclusively through Our Family Wizard (OFW) absent an emergency. The Parenting Plan also contained a restraining order prohibiting the parties from coming within fifteen feet of each other or having any physical or verbal confrontation.

The family court additionally found Father failed to prove contempt by Mother but found Father in contempt for willfully violating the Divorce Decree and the Evaluation Order. The family court ordered Father to compensate Mother for enforcing the orders and fined him $1,500 for disobeying the Evaluation Order. The court also awarded Mother $5,400 in attorney’s fees—which included the compensatory contempt award—and each party to pay one half of the GAL’s fees.

Both parties filed motions to reconsider. The family court denied Father’s motion and partially granted Mother’s motion as to summer visitation. This appeal followed.

The Court of Appeals found the family court did not error in awarding Mother sole custody. It found the parties’ respective relocations, and inability to communicate and make joint decisions necessitated Mother having sole custody. It discussed Father’s failure to foster a positive relationship between Mother and daughters, contrasting that with Mother’s continuous and appropriate efforts to encourage their relationship with Father.

Father also made numerous challenges to the parenting plan–some successful, some not. The Court of Appeals noted:

The visitation schedule and Parenting Plan require Parents to confirm visitation periods through OFW. Parents are prohibited from scheduling, or allowing others to schedule, elective activities for Daughters during the other parent’s time with Daughters unless the other parent provides written permission or the enrolling parent informs Daughters that they will miss any such event, except for Father’s Short Weekend Visitation. The Parenting Plan also requires Parents to notify each other through OFW of any important school or extracurricular events and expressly allows Parents to attend regardless of who has placement of Daughters at the time of the event.

We agree the visitation schedule and Parenting Plan in their current form present issues for these parties who are unable to cooperate and communicate effectively with each other. Therefore, we modify by adding additional specifics to portions of the visitation.

The Court of Appeals modified the school weekend visitation schedule by requiring Mother to provide Father the school calendars within ten days and giving Father until May 1st to select his “short weekends.” It clarified that his short weekends would go from Friday at 6;00 p.m. to Sunday at 6:00 p.m. and his “long weekends” would go from 6:00 p.m. the day school let out until 2:00 p.m. the day before school resumed.

The Court of Appeals further required Father to bring daughters to their extracurricular activities during his weekend and clarified that he could simply stay 15 feet away from Mother at these activities. It found that “[b]y taking Daughters to these events, Father attends to Daughters’ psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational needs.” The Court of Appeals required Mother to provide Father the extracurricular calendars so he could know them when he selects his weekend. It further held that if Father selected a short weekend that adjoined a school holiday he could get the adjoining day. It required him to exercise his short weekend visitation in the Gainesville area. The Court of Appeals denied Father’s request to return the children to school at the end of his weekends, finding that the daughters needed time in Mother’s home to “recuperate and resume their routine prior to the start of the school week.”

Under the final order, Father had all but the first week of summer. The Court of Appeals gave Mother an additional weekend in the middle of summer. The family court gave Father every Thanksgiving Holiday but had his Christmas visitation end December 23rd. Finding that was insufficient, it changed Father’s Christmas visitation to December 26th at 2:00 p.m. until January 1st at 6:00 p.m.

The Court of Appeals affirmed the family court’s contempt finding against Father for harassing communications, finding a series of emails from an August 2014 visitation exchange justified that finding. Father’s challenge to the contempt finding regarding his refusal to undergo the evaluation appears to be based upon a claim that the evaluation was unnecessary. The Court of Appeals found “[t]he only acceptable reasons for not complying with the order would be appealing and obtaining a supersedeas—which Father did not do—or being thwarted from obeying the order despite his good-faith effort to comply—which Father has not shown.”

Both parties appealed the award of $5,400 in attorney’s fees to Mother. The Court of Appeals found the award insufficient as Mother had $51,482.50 in fees and was the prevailing party. It increased the award to $10,000. Finally Father appealed the family court’s division of GAL fees. The Court of Appeals found his argument lacked citation to authority and refused to consider it.

Daily covers a lot of ground but is interesting for two reasons. First it demonstrates that, under de novo appellate review, the Court of Appeals will examine the minutia of custody orders and alter them if it believes modifications will benefit the children. Second, it is the first reported case (I believe) to require a non-custodial parent to take children to extracurricular activities during that parent’s time.