The November 20, 2024 Supreme Court opinion in Grungo-Smith v. Grungo, 444 S.C. 556, 910 S.E.2d 455 (2024), reversed the Court of Appeals ruling in Grungo-Smith v. Grungo, 438 S.C. 508, 884 S.E.2d 219 (Ct. App. 2023), and reinstated the family court’s order granting primary custody to Father.
Grungo-Smith stems from an action filed by Mother in 2019, seeking to modify the parties’ 2012 5/2/2/5 custody agreement, which became unworkable as Mother frequently relocated. At trial both parties sought primary custody. The family court, after asking the guardian to make custody recommendations, awarded custody to Father and Mother appealed. The Court of Appeals held the family court gave too much weight to the guardian’s testimony and erred in seeking the guardian’s custody opinion absent “extraordinary circumstances.” It reversed the family court but did not grant Mother primary custody. Instead, it held neither party had proven a substantial change of circumstances (a view my blog on the case found unconvincing) and reinstated the original custody order. Father sought, and was granted, certiorari.
The Supreme Court reversed the Court of Appeals and reinstated the family court’s award of primary custody to Father. It first held the Court of Appeals erred in its holdings regarding the propriety of the family court seeking the guardian’s custody recommendation and the weight to give the guardian’s testimony. It held “[t]here is no basis upon which to read an ‘extraordinary circumstances’ requirement into [S.C. Code] section 63-3-830(A)(6),” which prohibits a guardian from making a recommendation on custody “unless requested by the court for reasons specifically set forth on the record.”
The Supreme Court noted:
[T]he family court justified that request on the record, explaining that the guardian’s recommendation “would be helpful because of the disparity in the testimony, and [n]either side present[ed] any middle ground to the Court [since both parents requested primary custody].” The family court likewise explained it could accept or reject the guardian’s recommendation, and it would merely use the recommendation as one more piece of evidence to consider in making its custody determination.
The procedures followed by the family court and the guardian precisely tracked the express dictates of section 63-3-830(A)(6). No “extraordinary circumstances” were required. The court of appeals erred in inserting such a requirement into the statute.
The Supreme Court then, weighing the evidence de novo, held that the family court’s award of custody to Father was justified. Its opinion gives significant weight to the guardian’s testimony, noting “neither party has alleged the guardian’s report or testimony is inaccurate or biased in any way, and the express dictates of the statute were followed here, we find it proper to consider the guardian’s evidence in conjunction with the remaining evidence.”
The opinion, while explicitly stating both parents care deeply for the children and the decision was not intended to criticize either parent, details the facts supporting the award of custody to Father:
Mother has not demonstrated any error in the family court’s factual findings, most importantly, those involving credibility determinations. …
Mother’s second husband committed (and was convicted of) a heinous crime against one of the children, and Mother’s third husband verbally abused both children with apparent impunity. Moreover, Mother and Smith’s [Mother’s third husband] verbal altercations caused considerable tension with and distress to the children while at Mother’s house. Equally concerning, Mother and Smith apparently belittled Father to the children, calling him offensive and inappropriate names. In contrast to the discordant atmosphere at Mother’s house, the children were, by all accounts, objectively and noticeably more comfortable at Father’s house.
It is equally significant Father demonstrated considerable maturity and stability during the tenure of the joint custody arrangement. While Mother and the court of appeals faulted Father for failing to exercise his full right to custody under the joint custody arrangement, it is clear his reason for doing so was because he was putting the children’s interests before his own. Father’s decision under the circumstances to let the children sleep at Mother’s house on school nights rather than strictly enforcing the joint custody agreement reflects favorably upon him.
The factual issues regarding Mother’s second and third husband are not noted in the Court of Appeals opinion, an opinion that I believed gave insufficient weight to undisputed factual findings supporting the change of custody to Father. With knowledge of these new factual findings, it becomes an even less close case. These children clearly were unhappy in Mother’s custody—one of them even commented on my initial blog to express his displeasure with the Court of Appeals opinion.
This Supreme Court opinion provides useful guidance on when and how the family court seeks custody recommendations from the guardian and makes it more likely family court judges will do so.
Hey, baby Grungo here. I am now learning about different levels of state courts in my HS government class, and it reminded me to take a look at the case involving my parents. It’s pretty cool seeing how my life created a new precedent for future court cases, helping other kids in my situation. Furthermore, I would like to share my personal perspective on this mess.
First and foremost, to anyone reading this (lawyers, court people, etc.), it is important to recognize when a child discerns that their situation is not normal/crappy.
Around the 5-6th grade, is when I had this moment. Whenever I could remember, I was always happy when I visited my dad, aunt, and other family members, but every time, there was always some point when I knew I had to go back to my home (to my mother’s house). Let me tell you, I felt this horrible, sickening, soul-crushing pit in the bottom of my stomach. I never understood why I felt this deep fear, so I ended up blaming it on religion. Ironically, my mother taught us Christianity and used it as a tool to instill fear in me. I thought I was not a good enough Christian, so I thought I was going to go to hell. I think the court case said that my mom put oil on our heads before we saw the Guardian (which is true), and oh boy, it was worse than that. She used to call my father the devil, saying that I would go to hell if I ever lived with him. I genuinely thought this. I used to stumble and shake in fear every time my father picked me up during joint custody.
Right around the beginning of middle school, I finally understood my mother’s true colors. This is when my sister and I secretly recorded our mother arguing with our different stepfathers, and we really wanted to live in a stable environment with our dad.
Unfortunately, I went through years of extreme frustration knowing that my parents had to duke it out in family court. I wished I could waltz up to the judge and tell him my feelings. This is where the Guardian played a huge role. It was super important that the Guardian spoke to us when I understood what was actually going on behind the curtains. My biggest piece of advice to a Guardian ad litem is to:
1.) Take significant note of the environment the children are in, especially the subtle (or great) changes in mood/behavior of the kids.
2.) Structure your questions to determine if the children think their situation is normal.
For example, you could ask them to describe their genuine opinions of their parents. Take note of their body language (discomfort, nervousness, removal of eye contact, etc.). You could follow up this question by asking them to describe their lives compared to their friends at school. If their answers are generally broad or unclear, it could be a sign that they haven’t determined the abnormality of their living circumstances.
3.) If the kids clearly express a favor towards one parent, ask why. Ask what they like about being around parent A, or what makes them uncomfortable around parent B. Look for signs of happiness and excitement in their responses. It is a red flag if they become nervous/pressured to answer. Think about my situation: do you really think I want to tell some lady I hardly know that I will go to hell if I live with my dad? That would make me incredibly nervous (That’s the sign of a manipulated child!) The guardian ad litem should then analyze the children’s environment & indecision or nervousness to determine whether they can make an accurate statement.
Anyways, Thanks for reading my 2 cents! Hope I could help someone with the inside perspective of these shenanigans. (Also, y’all should tell parents to get along for the sake of their kids, because all this court means no college money.)
Baby Grungo, thanks for this comment. I often think that the family courts are running some odd social experiment where we allow a person with a limited view of the child’s actual situation to make decisions that will have lasting impact on their lives and then create a “substantial change of circumstances” burden that makes it harder to correct these decisions if their impact isn’t what was anticipated/hoped for. The family court expects litigants to monitor these decisions for necessary correction and there is no mechanism for the courts to do so. The result is that many children impacted by these decisions feel like a judge made an incorrect one based upon a very limited understanding of the child’s actual situation.