Court of Appeals, finding exceptional circumstances, affirms joint physical custody and divided legal custody

Posted Wednesday, April 26th, 2023 by Gregory Forman
Filed under Attorney's Fees, Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

In the April 26, 2023, opinion in Greene v. Greene, 439 S.C. 427, 887 S.E.2d 157 (Ct.App. 2023), finding exceptional circumstances, the Court of Appeals affirmed joint physical custody and divided legal custody.

Greene has a rather lengthy factual and procedural history but the significant dispute was whether Father had sexually abused the parties’ daughter.  Allegations of Father touching daughter’s “tickle spot” were raised by Mother twice in the two-year litigation period.  There were also concerns Mother was engaging in parental alienation.

During the litigation period, both parties underwent psychological evaluations to assess parenting capacity.  Daughter underwent a forensic medical examination and two separate forensic interviews. Father underwent a psychosexual evaluation.  Father was also ordered to turn over his electronic devices for review.  

From the summary of the forensic evaluator’s and Father’s testimony, it appears that Father was bathing daughter without using a washcloth and what the child reported to Mother was simply poor boundaries by Father.  However, during the two-year litigation period, Mother repeatedly tried to limit Father’s contact with daughter, tried to have the guardian relieved once the guardian began advocating positions she opposed, and stopped taking daughter to the court-appointing counselor once the counselor began advocating positions she opposed.

At trial, Mother sought sole custody and Father sought joint custody.  The parties presented various experts addressing the parental dynamic and daughter’s purported disclosures.  The child’s forensic examiner found no evidence to indicate daughter had experienced sexual abuse or was at risk of sexual abuse from Father, finding a stark difference between Mother’s reports and daughter’s initial forensic interview and between the child’s first and second forensic interview—during which time Mother engaged in “behavior directed toward enabling disclosure.”  The forensic examiner noted daughter was not alienated from either parent but that the parenting dynamic exhibited high levels of discord.  The child’s counselor felt Father was more supportive of Mother’s relationship with the child than Mother was of the Father’s relationship.

At the close of trial, the family court awarded the parties’ joint custody with Father to have primary decision-making authority for daughter’s education and health care, and Mother to have primary decision-making authority for her extracurricular activities and religious training.  The court set child support on shared custody guidelines, gave Father the yearly dependent tax deduction, and required Mother to pay Father $35,000 in attorney’s fees but allowed some of these fees to be taken as credit against her equitable distribution share of Father’s 401(k).

Both parties appealed but Father ultimately withdrew his appeal.  The Court of Appeals affirmed the award of week-on/week-off physical custody and divided legal custody.  In affirming the 50/50 physical custody arrangement, the family court noted the parties had been rotating daughter’s placement on a weekly basis without incident since August 2019. It further supported the decision by finding:

[T]here is a consensus among knowledgeable third parties, including the GAL and treating experts, that both Mother and Father are fit and loving parents.  Thus, we find the circumstances of this case—including but not limited to Child’s attachment to both parents, Mother’s reactions to recommendations she finds unfavorable, and Mother’s potential for unhealthy enmeshment with Child—constitute exceptional circumstances warranting the family court’s award of joint custody.

The Court of Appeals also affirmed the divided legal custody. “Despite their many disagreements and differing opinions, Mother and Father seem to mostly agree on Child’s schooling, religious education, and pediatrician.  To the extent they do not agree, however, the record supports the family court’s assignment of the decision-making categories for Child’s parenting.”

The Court of Appeals modified the dependent tax deduction, noting that the joint physical custody arrangement made it more appropriate to alternate the dependency.  It affirmed the child support because Mother’s allegation of error on child support was based on her (rejected) argument that she should get sole custody.

The Court of Appeals rejected Mother’s request for attorney’s fees, finding Father to be the primarily prevailing party in the lower court.  However, it remanded the award of fees to Father.  One reason for the remand was Father losing his successful result on the dependent tax credit on appeal.  It also held the fee award should take into consideration Father’s actions surrounding the inspection of his electronic devices:

[T]to the extent Mother’s fees and costs include monies paid to digital forensic examiner James Boswell and/or attorney’s fees expended to address Father’s likely wiping of his devices upon learning he would be required to produce them, we find Father should be responsible for all such fees because he took “significant actions . . . on each of the computer devices that . . . impeded [the digital] investigation.”  Additionally, we find Father responsible for any GAL fees related to Boswell, the computer forensic report, and the family court’s consideration of discovery related to Father’s electronic devices.

I believe Greene may be the first published opinion affirming divided legal custody—which is an option I had blogged about previously.  It is one of the rare cases affirming joint physical custody but is consistent with it being affirmed when there is strong parental discord and/or a history of 50/50 physical custody.  And in footnote 10, the Court of Appeals continues to express concern with appellate jurisprudence disfavoring joint custody. It is unclear if the Supreme Court might revisit its view that joint custody remains disfavored but clearly, this appellate panel (and this author) would favor it.

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