Little known case has big impact on custody jurisdiction

Posted Friday, August 12th, 2022 by Gregory Forman
Filed under Child Custody, Jurisdiction, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

Occasionally I blog on little known cases that I find myself referencing often.  Thus today’s blog about Widdicombe v. Tucker-Cales, 366 S.C. 75, 620 S.E.2d 333 (Ct.App.2005).

Widdicombe arises out of a custody modification case. Subsequent to a South Carolina court-approved custody agreement, Father moved to Illinois.  He filed a custody modification complaint in South Carolina on August 22, 2000.  In his compliant he alleged Mother had moved numerous times without notifying him (in violation of the custody order), that her present whereabouts were unknown, but that her last known address was in South Carolina.

On August 28, 2000, Father obtained an ex parte order granting him custody of the child.  Mother filed an answer and counterclaim on November 11, 2000.  In that pleading, she stated she’d moved to North Carolina in 1998 but returned to South Carolina in August 2000, claimed she was a resident of Charleston County, South Carolina, and agreed that South Carolina had jurisdiction.

On February 15, 2001, the family court issued a temporary order granting Father custody. On August 1, 2001, the family court struck the case from the active roster but left the temporary order in effect.  Mother then filed a motion to dismiss the case, alleging a lack of personal and subject matter jurisdiction and asserting she had been a resident of North Carolina the date the ex parte order issued.  The family court denied the motion noting Mother’s answer claimed she had been a South Carolina resident at the time Father’s action was filed and that no custody litigation was pending in another state. Mother sought reconsideration[i], which the family court denied.  Mother appealed and the Court of Appeals dismissed her appeal as interlocutory.

On January 6, 2004, Mother filed another motion to dismiss, which the family court denied. She filed a motion to reconsider, which the family court denied. She then appealed.

This time the Court of Appeals agreed to address her interlocutory appeal, noting “[u]nder the unique factual circumstances of the present case, we conclude the family court orders have the practical effect of a final order affecting Mother’s substantial rights. In any event, the issues raised by Mother on appeal have been the subject of much contention in this case. They will inevitably be raised to the family court again in the future and, because they have been fully briefed by the parties, we find that it would be in the interest of judicial economy to decide the matters now.”

Addressing the jurisdictional issue, the Court of Appeals noted the muddled evidence of Mother’s residence at the time the action commenced.  However, it concluded there was sufficient evidence that she was a South Carolina resident at the time of filing for South Carolina to retain subject matter jurisdiction to modify custody.  While not explicitly noted, the Court of Appeals opinion demonstrates that jurisdiction was not lost during the pendency of the litigation despite Mother’s relocation to North Carolina shortly after August 2000: “Because we conclude Mother was a resident of South Carolina at the time Father filed his complaint, the PKPA’s [the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A] third requirement for continuing jurisdiction is satisfied.”

The Supreme Court granted Mother’s petition to review the Court of Appeals’ opinion and vacated a finding that Mother’s unclean hands was a basis to deny her motion to dismiss. Widdicombe v. Tucker-Cales, 375 S.C. 427, 653 S.E.2d 276 (2007).  However it affirmed the finding of subject matter jurisdiction.

Widdicombe establishes two reciprocal issues on jurisdiction. First, South Carolina is not deprived of subject matter jurisdiction in the midst of child custody litigation despite all parties and the child no longer living here.  Second, if there is ongoing custody litigation in another state, and no party or the child remains there, that state still has subject matter jurisdiction until the litigation ends or until that state relinquishes jurisdiction. 

When seeking to modify custody in South Carolina when there is ongoing custody litigation in another state, that state must first relinquish jurisdiction before South Carolina can exercise jurisdiction. The recent decision in Williams v. Williams, 436 S.C. 550, 873 S.E.2d 785 (Ct.App. 2022), held that jurisdiction must be established before the family court can grant temporary relief.  Thus, filing custody modification litigation when South Carolina’s jurisdiction may be challenged will substantially delay any potential temporary relief. Widdicombe is a case all South Carolina custody attorneys should know.

[i] I actually assisted Mother’s counsel on this motion.

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