Buying the child(ren)’s time

There’s a never discussed but occasionally employed litigation strategy of using money to purchase time with (or limit an opposing party’s access to) children.

Earlier this month I settled a case in which grandparents used money to keep their own daughter from having enforceable visitation with her daughters. At the time of mediation my clients had custody of their granddaughters, and their own daughter had no visitation. However, had the case gone to trial, there was always some chance their daughter could have regained custody and a significant chance that she would have gained some autonomous visitation. By relinquishing claims for past due (and future) child support and attorney’s fees, and agreeing to pay some funds (including some attorney’s fees) to their daughter, they were able to obtain a more stable and certain resolution. Disregarding their waived claim for ongoing child support, the amount they paid (including the waiver of past due support and fees) was substantially less than my trial retainer would have been. And this “investment” granted them a certainty that trial could not. Purchasing their granddaughters’ time was an excellent strategy/investment.

I typically see this strategy being employed in two distinct situations. One is as described above: when a non-parent uses money to obtain a favorable settlement on third-party custody and visitation. In fact, I can think of few cases in which I have obtained custody for a third-party through settlement in which that third-party has not waived child support from his or her own kin in order to achieve this result.

The second situation is fathers offering a more favorable resolution on child support or attorney’s fees than the case would otherwise merit in order to gain more time with their children (there’s no reason this strategy couldn’t be employed by mothers but, in the world I inhabit, men typically have more money and women typically have more control of the child). A parent trying to get one more day every bi-weekly period or an extra week or two at summer will sometimes find that request only gets serious consideration when sweetened with a little financial incentive. This is one reason I counsel clients who want additional time with their children to forgo a demand for shared custody child support. If the goal is truly more time with their child money is fungible and, if not easily replaced, at least rarely missed, while time with one’s child is a precious commodity.

Obviously, if one side is buying the child’s time, it means the other side is selling the child’s time. If purchasing a child’s time is a strategic consideration motivated by love, the converse isn’t so ennobling. Thankfully, I am at the point of my career in which few of the caregivers I represent are move motivated by money than by love. Perhaps, in a future communist utopia, considerations of financial resources would not intrude on considerations of child custody. Again, that is not the world I inhabit.

Considering when the judicious application of money might avoid a costly and risky trial should be party of every custody attorney’s litigation strategy.

Argued first but decided second, the December 18, 2019 Court of Appeals opinion in Singh v. Singh confirms what a November 6, 2019 Court of Appeals opinion in Kosciusko v. Parham, 428 S.C. 481, 836 S.E.2d 362 (Ct. App. 2019), previously determined: the family court cannot enforce custody issues decided by arbitration. With no judges overlapping on the two three-judge panels, we have a unmistakable understanding of where the Court of Appeals stands on this issue. Whether the Supreme Court decides to grant certiorari in either of these two cases and provide us a definitive, and final, answer remains to be seen.

Singh cites somewhat different cases but reaches the same conclusion as Kosciusko: it violates bedrock state policy for anyone other than family court judges (subject to review by the appellate courts) to make binding determinations regarding the best interests of minor children. In Singh, the parties submitted Father’s custody modification request to binding arbitration, with this request being approved by an order of the family court. The operative order submitting these disputes to arbitration required the family court to accept the arbitrator’s award and imposed an immediate $10,000 penalty on any parent attempting to challenge the arbitration award. The arbitrator subsequently changed custody to Father and Mother filed five separation motions seeking to vacate the arbitration award as void pursuant to Rule 60(b)(4), SCRCP.

The family court denied these motions finding “(1) Mother was estopped from objecting to the arbitration because she procured and accepted a benefit from the Settlement Agreement and the consent order of dismissal, (2) she waived her right to object by participating in the arbitration proceedings, (3) her due process rights were not violated because parents have the right to make decisions for their children, and (4) she waived her constitutional rights by agreeing to the arbitration and failing to timely challenge the arbitration.

Undergoing the same analysis of ADR Rules 3 and 4 that the Kosciusko panel undertook, the Singh court determined there was no express authority to arbitrate children’s issues. The opinion further relies upon the doctrine of parens patriae, citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 600 (1982) (alteration in original) (footnotes omitted) (quoting Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 57 (1890)).:

Parens patriae means literally “parent of the country.” The parens patriae action has its roots in the common law concept of the “royal prerogative.” The royal prerogative included the right or responsibility to take care of persons “who are legally unable, on account of mental incapacity, whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of themselves and their property.” At a fairly early date, American courts recognized this common-law concept, but now in the form of a legislative prerogative: “This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature [and] is a most beneficent function . . . often necessary to be exercised in the interests of humanity, and for the prevention of injury to those who cannot protect themselves.”

The opinion further cites Ex parte Messer, 333 S.C. 391, 509 S.E.2d 486 (Ct. App. 1998), “[p]arties to a separation agreement may agree to submit all disputes, other than those involving their children, to arbitration and thus deprive the family court of its traditional powers of enforcement over those disputes” (emphasis added).

In supporting its holding, the opinion notes:

A court cannot be bound by an arbitration award and simultaneously act as parens patriae on behalf of a child. Therefore, although parties are free to agree to submit these issues to alternative dispute resolution, any agreement to limit the family court’s ability to review such an award is unenforceable.

Prohibiting courts from overseeing arbitration decisions that involve the best interest of a child infringes upon the public policy of this state. Our society has an inherent interest in every child. As we stated, family courts are charged with protecting that interest for every child. Arbitrators are not held to the same standards as family court judges, and the law does not impose upon them the same duty to act in the best interest of a child. According to the arbitration agreements Mother and Father entered into, the arbitrator usurped all of the decision-making authority of the family court but undertook none of the duties imposed upon the court. Under the arbitration agreements, this court would not have the ability to review the arbitrator’s decision regardless of whether it conflicted with the best interest of the children. This opens the question of whether family courts would have the ability to modify such arbitration awards should a change in circumstance occur after a final award.

Finally, the Singh court rejected Father’s equitable estoppel defense, while analyzing it as a waiver claim:

[T]his case involves the fundamental rights of children in a custody action and the court’s duty to protect the rights and interest of children. Thus, any waiver on the part of the parent cannot be found to abrogate the rights of the child or the duty of the court. …We acknowledge the parties made a conscious decision to include an arbitration provision in the Settlement Agreement and reaffirmed their desire to arbitrate those issues by entering into agreements to arbitrate, not once, but three times. A parent cannot waive the rights of any child or the duty of the family court.

Emphasis in original.

Since the only two opinions addressing this issue are from the Court of Appeals, we do not have a definitive answer on whether South Carolina parents can be bound by arbitrated custody determinations. However the analysis and holding of these two opinions is what I had expected and is consistent with prior caselaw and doctrine. Until and unless the Supreme Court tells us otherwise, South Carolina family court attorneys should treat arbitrated custody orders as void.

Many family law attorneys in the Charleston area were awaiting the Court of Appeals decision in Singh v. Singh, which was argued there this February. That appeal was supposed to determine whether child issues in family court could be arbitrated. While many family law attorneys were allowing such issues to be arbitrated, other family law attorneys refused to do so, believing that the family court could not enforce such arbitration awards.While we were waiting on a decision in Singh, a different Court of Appeals panel heard Kosciusko v. Parham, 428 S.C. 481 836 S.E.2d 362 (Ct. App. 2019), in October and issued its decision on November 6, 2019. Addressing the same issue as in Singh, the Kosciusko court held that family court orders approving arbitration awards regarding children’s issues are void ab initio. Assuming the Kosciusko opinion isn’t subsequently overturned, every provision of any arbitration order regarding child’s issues in family court within the State of South Carolina is now void.

In Kosciusko, the parties agreed to submit the issues of “right of first refusal, holidays, visitation schedule, vacations, and transfers/transportation” to binding arbitration and obtained a consent order incorporating the agreement. The order further provided that “the parties further agreed that such confirmation shall not require a hearing, but may be accomplished based on written application of either party.” Additionally, the order provided that the family court would retain continuing jurisdiction to modify the arbitration award or any order of the court. They then arbitrated these issues and the family court issued an order confirming the arbitration award without a hearing. Neither party appealed the order confirming the award.

Father then filed a contempt action against Mother alleging she had violated terms of the arbitration award. Mother moved to dismiss the contempt action, arguing the order was not valid. The family court agreed and dismissed the contempt action. After the family court denied Father’s motion for reconsideration, he appealed.

The Court of Appeals first found that “the submission of children’s issues to binding arbitration would be an improper delegation of the family court’s authority and violative of South Carolina law because the procedures mandated by the Uniform Arbitration Act would prevent the family court from determining whether an award is in the child’s best interest.” It found that, in the context of children’s issues in family court, the provisions of S.C. Code § 63-3-530(A)(39) override the provisions of South Carolina’s Uniform Arbitration Act, S.C. Code § 15-48-10, both because 63-3-530(A)(39) is more recent and more specific. That code subsection limits the family court’s jurisdiction for alternative dispute resolution (ADR):

The family court has exclusive jurisdiction: to require the parties to engage in court-mandated mediation pursuant to Family Court Mediation Rules or to issue consent orders authorizing parties to engage in any form of alternate dispute resolution [that] does not violate the rules of the court or the laws of South Carolina . . .

Father argued such arbitrations were authorized by Rule 3(a), SCADR, which allows parties to domestic relations case to “mediate, arbitrate or submit to early neutral evaluation at any time,” However the Court of Appeals noted Rule 4(d)(2), SCADR, specifically authorizes parties “may submit the issues of property and alimony to binding arbitration,” while Rule 4(d)(1), SCADR only authorizes mediation for custody and visitation issues. It further noted that Rule 4(d)(5), SCADR, states that “[i]n lieu of mediation, the parties may elect to submit issues of property and alimony to binding arbitration in accordance with the Uniform Arbitration Act…” and that this subsection did not grant a similar right to arbitrate custody and visitation issues. It thus held the ADR rules did not authorize arbitration for custody or visitation issues.

The Court of Appeals further noted that the Uniform Arbitration Act limited the family court’s authority to review arbitration awards in a manner inconsistent with the family court’s obligation to protect the best interests of children. Under the Uniform Arbitration Act “an inquiry into the substantive fairness of an agreement . . . would be inconsistent with the Arbitration Act and would severely undermine the finality of arbitration agreements.” Prior case law indicated that such circumscribed review was allowable for alimony and property division awards but had never been acceptable for child related issues. As the opinion notes:

Because the family court may not delegate its authority to ensure that issues regarding children are resolved in their best interest, our supreme court has provided that family courts have continuing jurisdiction to do whatever is in the best interests of the child regardless of what the separation agreement specifies. …Accordingly, we find that our state’s precedent precludes the submission of issues involving child custody and visitation to binding arbitration as such action would constitute an improper delegation of the family court’s authority to determine issues in the best interest of the child.

Father raised a number of additional grounds to uphold the arbitrated custody agreement, all of which the Court of Appeals refused to address because they were not preserved for appellate review and because subject matter jurisdiction cannot be waived.

Assuming Kosciusko is not subsequently modified, child custody, visitation, and child support issues cannot be arbitrated in South Carolina and all existing confirmed arbitration award on these issues are unenforceable.

I recently handled a marital dissolution case in which my client had hightailed it while pregnant to another state. Her husband’s motion for temporary relief sought to have her return to South Carolina in an attempt to force her to bear their child in South Carolina–and thus insure South Carolina had subject matter jurisdiction to address custody.

While the family court can order a party to bring or return a child to South Carolina, it does not have authority to order a party to live in South Carolina. Since my client’s child had not been born yet, the family court could not order her to return. Her child will be born elsewhere and custody will be fought elsewhere.

South Carolina’s determination of paternity statute, S.C. Code § 63-17-10, et. seq, allows paternity actions to be brought prior to the child’s birth. S.C. Code § 63-17-10(D). Fathers in other states have attempted to use similar statutes to establish jurisdiction for child custody in the state where the child was conceived when the mother has left the jurisdiction prior to the child’s birth. So far, they have all failed.

The legal issue is whether a determination of paternity is a custody determination for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, the home state of the child–which is the state of the child’s birth if the child is a newborn, has priority on jurisdiction for an initial custody determination. Under South Carolina’s version of the UCCJEA, home states is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” S.C. Code § 63-15-302 (7). It would appear to require the child’s birth to apply.

Under the UCCJEA, where the child has a home state, home state jurisdiction has priority in any initial child custody proceeding. S.C. Code § 63-3-330(A)(1). However, if one parent still resides in the state where custody was initially determined, that state has continuing jurisdiction to determine custody until it decides to relinquish jurisdiction. S.C. Code § 63-3-332. Thus, if a paternity determination is an initial custody determination, the state where paternity is determined–which can be the state of the child’s conception–can also determine custody if the child is subsequently born in another state. If it’s not, then that state cannot determine custody. Further, some fathers have tried to argue that an unborn child can have a “home state,” thus (in theory) enabling the parties’ last state of residence to determine child custody even if the mother moves prior to the child’s birth.

So far the arguments that paternity determinations qualify as custody determinations or that an unborn child has a “home state” have been uniformly rejected. See Gray v. Gray, 139 So.3d 802 (Al. Ct. App. 2013) (Alabama was not home state for UCCJEA jurisdiction where mother moved to Michigan prior to child’s birth); Arnold v. Price, 365 S.W.3d 455, 461 (Tex.App.2012) (concluding that a homestate determination could not be made at the commencement of a child-custody proceeding when the child was yet unborn and that the state in which the child was later born would become his home state at the time of his birth); B.B. v. A.B., 31 Misc.3d 608, 916 N.Y.S.2d 920 (Sup.Ct.2011) (determining that the home state of a child born in Minnesota after the mother decided not to return to New York after a visit to her childhood home in Minnesota was Minnesota and not New York, where the mother and father had resided as a married couple); Waltenburg v. Waltenburg, 270 S.W.3d 308, 318 (Tex.App.2008) (deciding under the Texas version of the UCCJEA that the UCCJEA “does not authorize jurisdiction over a child custody claim concerning a child before its birth”); In re Custody of Kalbes, 302 Wis.2d 215, 733 N.W.2d 648 (Ct.App.2007) (determining that Idaho did not have jurisdiction under the UCCJEA of a child who was not born at the time the Idaho action was instituted and who was later born in Wisconsin); see also In re Marriage of Tonnessen, 189 Ariz. 225, 227, 941 P.2d 237, 239 (Ct.App. 1997) (determining under the Uniform Child Custody Jurisdiction Act [“UCCJA,” a precursor to the UCCJEA] that Arizona was the home state of a child born in Arizona and stating that “[t]he statute does not contemplate the in utero period of time in determining … home state; it contemplates a postnatal child”); and In re Marriage of Tonnessen, 937 P.2d 863 (Colo.Ct.App.1996) (concluding under the UCCJA that Arizona was the home state of the children born in Arizona after the institution of an action in Colorado).

The rational was best expressed in the Texas Waltenburg case:

[R]eading the UCCJEA to authorize jurisdiction over a custody matter concerning an unborn child would defeat the clear purpose underlying the legislature’s enactment of the UCCJEA — to prioritize home-state jurisdiction. Under such a reading, a party could file suit pre-birth under the UCCJEA provision authorizing jurisdiction when “no other court has jurisdiction,” and use the “simultaneous proceeding” provision to control, post-birth, whether the child’s home state can ever exercise that “priority” jurisdiction. We reject this reading of the UCCJEA.

The upshot is that a pregnant woman, even a married one, who does not wish to litigate child custody in the state where the father lives appears to have the unbridled right to move anywhere else and have child custody determined in the jurisdiction where she lives at the time of the child’s birth. The right to shop for jurisdiction while pregnant appears to be absolute.

While not thought of as such, the guardian’s questionnaire is akin to additional (child-custody related) interrogatories. As an example, the current questionnaire of a local attorney/guardian, S. Maria Averill, whose work I greatly respect follows:

Download (DOCX, 24KB)

Admittedly such questionnaires are not answered under oath. Still, inaccurate responses or responses that trash the other parent or that parent’s family are valid impeachment material. It’s not as though the party providing the responses can credibly argue that he or she was unconcerned with the responses’ accuracy when submitting them to the guardian. Often a party’s responses contain material inaccuracies and omissions that can be used for impeachment. Often these responses convey a much more hostile attitude to the other parent or that parent’s family than that party is conveying in discovery responses, affidavits, and testimony. Responses to questions about parental fitness or each party’s respective strengths and weaknesses as a parent are especially telling. In those situations, the response to the guardian’s questionnaire can be used to demonstrate that party’s real attitude to the other parent (and, in closes cases, that negative attitude can be a deciding factor).

That responses to a guardian questionnaire can provide useful impeachment material leads me to do two things in every custody case in which the guardian has issued a questionnaire. First, get the other party’s response to the questionnaire shortly after the parties have provided them. This is especially important in cases in which the court has asked the guardian to do an expedited preliminary investigation and set a review hearing on custody. Knowing the other party’s responses prior to a review hearing or custody trial enables one to ask the guardian to conduct follow-up investigation that may uncover material inaccuracies or omissions in that party’s responses. It also allows one to highlight these inaccuracies or omissions to the court. Finally, it potentially allows one to demonstrate the other party’s negative attitude towards one’s client.

Second, understanding that the other party may get one’s own client’s responses, one should review every client’s responses before submitting them to the guardian. Part of the review should be for accuracy and thoroughness. Part of the review should be to scrub the responses for unnecessary bashing of the other parent and that parent’s family. While it’s fine to note in the questionnaire responses concerns regarding the other parent and that parent’s family–especially concerns the client wants the guardian to investigate–this information should be conveyed factually and with little or no editorializing.

For example, if there is concern over the other parent’s alcohol use, the questionnaire should note this concern and explain the basis for this concern. This is better that simply having the client write, “the other parent is a drunk.” “The children hate their father” is much better expressed as “the children do not enjoy visiting their father” or “the children are not closely bonded to their father.”

There’s rarely a case in which the other party’s responses to the guardian questionnaire do not provide useful information for suggesting follow-up investigation and for impeachment at trial. Thus, it should be routine practice to request a copy of the other party’s questionnaire responses from the guardian. Further, understanding that the opposing party and the trial judge may eventually see one’s own client’s responses to these questionnaires, one should always review draft responses before they are sent to the guardian.

There are numerous recurring issues in South Carolina family law that ultimately will need to be resolved by our appellate courts. One of the more interesting ones–because it is both relatively common and extremely consequential–is the interaction of the De Facto Custodian statute and the Moore factors.

The Moore factors were created by the 1989 Supreme Court case of Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989), which set up a four-criteria test for deciding when to return children to their parents when a non-parent had custody. Those factors were:

1) The parent must prove that he is a fit parent, able to properly care for the child and provide a good home.

2) The amount of contact, in the form of visits, financial support or both, which the parent had with the child while it was in the care of a third party.

3) The circumstances under which temporary relinquishment occurred.

4) The degree of attachment between the child and the temporary custodian.

Moore did not establish the supremacy of any one factor. In practice, the first factor–parental fitness–was often controlling. When the parent was unfit this wasn’t an issue: the family courts were obviously not going to return custody to an unfit parent. However when a parent was fit, the other three factors–especially the fourth one–would seem to caution the courts from returning custody when the child had a strong and enduring bond to the third-party. In practice, family court judges were overruled when they failed to return children to fit parents.

In 2008, South Carolina enacted a “De Facto Custodian” statute, § 63-15-60. That statute defined as a “De Facto Custodian,”:

[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

(1) has resided with the person for a period of six months or more if the child is under three years of age; or

(2) has resided with the person for a period of one year or more if the child is three years of age or older.

Someone who can prove he or she meets this definition by clear and convincing evidence “has standing to seek visitation or custody of that child.”

Many of the third-parties who have physical possession of a child meet the criteria of De Facto Custodian. The De Facto Custodian statute would appear to give such parties greater claim (than Moore does) to keep custody. Frequently, in custody cases between parents and non-parents, the non-parents will be much more stable and closely bonded to the child–but the parent will be fit. Under the Moore factors, custody would likely–if gradually–be returned to the parent. Since the De Facto Custodian statute gives such non-parents the right to seek custody, it seems less likely the court should return children to parents in such situations.

No appellate opinion resolves this issue. An unpublished 2017 Court of Appeals opinion in Lester v. Sanchez originally held that a De Facto Custodians “are not on equal footing with biological parents in a custody dispute.” However that opinion was then refiled to remove such language by removing the finding that Sanchez was a De Facto Custodian.

I support the line of United States Supreme Court cases that give parents a Constitutionally -protected liberty interest in raising their children. However, I also think it cruel to remove children, especially young children, from the only caregivers they have known to return them to a parent who was unable or unwilling to raise them during their infancy. The bond a child develops with a caregiver the first few years should only be broken under the most compelling circumstances–and I don’t think a biological parent finally getting fit is so compelling. To the extent the De Facto Custodian statute might hinder the removal of children from the persons they are most bonded to and return them to fit parents they may not know very well, I think that is a good thing.

Right now I have two cases where the balance between the Moore factors and the De Facto Custodian statement may be outcome determinative. I’ve had a half dozen similar cases the past five years. How the Moore factors and the De Facto Custodian statute should interact will ultimately be decided because some intrepid attorney appeals the issue after getting a disappointing result. The test case is surely out there awaiting some ambitious attorney’s attention.

The May 8, 2019 Court of Appeals opinion in Klein v. Barrett, 427 S.C. 74 828 S.E.2d 773 (Ct. App. 2019), finds the Court of Appeals affirming a very detailed and highly unusual custody arrangement.

Kline involved a custody modification brought by (Ex-)Wife. At the time of the parties’ 2010 divorce, (Ex-)Husband had primary custody of the children with Wife having liberal visitation and both parties having the right of first refusal. It was agreed that Wife would not have to pay child support while she pursued a degree to become a certified registered nurse anesthetist (CRNA).

Initially, the parties were able to effectively co-parent. Shortly after Wife finished her degree Husband asked her to begin paying child support. At that point communication between the parties broke down and Wife filed this modification action seeking custody and child support. After trial and motions to reconsider, the family court issued an order maintaining primary physical custody with Husband but giving Wife more visitation (in an extremely detailed schedule), providing each party legal custody of particular aspects of the children’s lives, and requiring Wife to pay child support, 2/3rds of the guardian ad litem’s fee, and $10,000 of Husband’s attorney’s fees. Wife appealed and the Court of Appeals affirmed.

The physical custody arrangement ordered by the family court and affirmed by the Court of Appeals ended the previous right of first refusal but gave Wife alternating weekend visitation, starting Thursday after school and continuing until the start of school on Monday. In weeks for which Wife has weekend visitation (visitation weeks), Wife additionally has after school visitation Monday through Wednesday until 7:00 p.m. During visitation weeks, the children eat dinner with Wife. Conversely, during non-visitation weeks, Wife has after school visitation Monday through Thursday until 6:00 p.m., and the children eat dinner with Husband.

The family court believed this arrangement was the best way to relieve conflict between the parties while serving the best interests of the children. Apparently the parties’ children (a daughter age 16 and a son age 11 at the time of trial) did not like going long periods of time without seeing either parent. Both children told the clinical psychologist, who was appointed by the court to conduct a comprehensive custody evaluation, that they wished to spend more time with Wife.

On appeal Wife argued that an alternating week custody arrangement was in the children’s best interests. The Court of Appeals disagreed, specifically finding that this case presented “exceptional circumstances” justifying joint custody:

In considering the physical placement arrangement challenged by Wife, we commend the family court’s efforts to serve the needs of all parties involved. We find the court properly weighed the preferences of the children and the recommendations of the experts and guardian ad litem. The court appropriately incorporated this input into the new custody framework. Specifically, the court addressed the children’s desire to spend more time at Wife’s home during the week by extending the visitation until 7:00 p.m. on certain evenings so as to increase quality time and allow for family meals with both parents. Additionally, the court expanded the duration of Wife’s weekend visitation.

Citations omitted.

Given that Wife was also seeking joint custody, it’s not surprising that the Court of Appeals affirmed a joint custody arrangement. What is surprising is how detailed the custody arrangement is and how the family court fashioned a schedule with so many transitions between parties that no longer got along. However given that the Court of Appeals found that the underlying conflict arose when Husband asked Wife to begin paying child support upon her completion of the CRNA program (as she had agreed to do in the parties’ divorce decree) and Wife responded by informing Husband she intended to seek custody, it is hard to lay the fault for this breakdown on Husband.

The Court of Appeals further affirmed the award of $15,000 in attorney’s fees to Husband. The Court noted that Wife’s annual income was $51,969.60 greater than Husband’s, that Husband’s attorney’s fees amounted to approximately forty-four percent of his gross annual income whereas Wife’s accrued fees were equivalent to around twenty-five percent of her gross income, and that Husband obtained beneficial results. It concluded that Wife was in a superior position to bear the cost of the fees.

In requiring Wife to pay 2/3rds of the guardian’s fees the Court of Appeals noted that the family court erred in applying the Glasscock factors and should instead have applied the factors from S.C. Code § 63-3-850(B). In layman’s terms, this means that successful results are not a factor in the award of guardian’s fees. However the Court of Appeals affirmed this unequal allocation of the guardian’s fees for the same reasons it affirmed the award of attorney’s fees to Husband.

Finally, the Court of Appeals affirmed the award of child support to Husband. Given the unusual visitation schedule, the family court employed Schedule C shared custody guidelines. On appeal, Wife asserted neither party should pay child support. However given Wife’s greater income, Husband’s retention of primary physical custody, and the agreement that Wife would begin paying child support once she completed her CRNA program, the Court of Appeals affirmed the award of child support (at trial, the family court did not award Husband any retroactive child support–something Husband should have appealed). The Court of Appeals also made Wife pay 100% of the daughter’s orthodontic expense because she informed Husband via email that she would do so.

It is unclear whether Kline portends a future in which South Carolina appellate courts approve creative and detailed joint custody arrangements. It could simply be that one cannot defeat a joint custody arrangement on appeal if one is seeking a result that moves the parties even closer to 50-50 physical custody.

Klein describes a situation all too familiar to family law practitioners: one parent upsets a stable domestic situation to further an unrealistic desire to avoid paying support (or to get more support). Wife was graced by the initial moratorium on her child support obligation. Had Husband demanded child support be set based upon her earning capacity at the time of their divorce Wife would have been ordered to pay it, even if this obligation hindered her ability to obtain the credential needed to obtain a higher paying job. Yet, once Husband attempted to obtain his benefit from this bargain, Wife’s litigation strategy enabled her to avoid paying child support for another 2+ years and insured their daughter’s teenage years were spent in custody litigation. Great job family court in rewarding this intransigence.

In 2012, South Carolina revised its child custody statutes and added a provision requiring proposed parenting plans at temporary hearings. This parenting plan asks each party to propose a bi-weekly, holiday, electronic, and summer visitation schedule, address legal custody, describe requested restraints, and note any other custody concerns the family court should be aware of.

At that time I wrote, “the parenting plan provision will require extra work, which means extra fees for South Carolina family law attorneys. We are the clear–if minor and unintended–beneficiaries of this new law.” Six and a half years later, I’ve changed my mind. Experience suggests that these parenting plans can communicate something useful to the family court judge.

Too often parenting plans communicate indifference to the process. It’s easy for a primary wage earner to submit a parenting plan that proposes week-on/week-off custody in the hope of obtaining liberal visitation. However, without some justification for upending the status quo that radically, the family court is unlikely to give this parenting plan much consideration. Better for a primary wage earning to propose a parenting plan of extremely liberal visitation that works around his or her work schedule in the hope that the family court actually adopts it. Similarly, the primary caretaker whose parenting plan recommends visitation every other Friday to Sunday and two weeks at summer, but who has no serious issues with the other parent’s parenting (other than that the other parenting hasn’t been primary), isn’t providing the family court a parenting plan the court is likely to adopt but is communicating that parent’s hostility toward the other parent.

Even worse are litigants who propose unworkable parenting plans. Fixed parenting plans create misery for parents who travel frequently and irregularly for work. For such parents, a suggestion that the court forgo the bi-weekly pattern for a more flexible schedule is likely to achieve a visitation schedule that parent can actually utilize. Litigants who work a 24-hour on/48-hour off schedule should substitute a bi-weekly schedule for a schedule that alternates every three weeks (since the work schedule rotates every three weeks). Then their parenting schedule will not conflict with their work schedule.

Finally, in close custody cases, proposed parenting plans communicate each parent’s attitude towards the other. In cases where both parties have had substantial caretaking responsibility, a parenting plan that is close to 50/50 in time recognizes the other parent’s role in the child’s life. In contrast, a parenting plan that suggests the other parent have minimal time with the child better be accompanied by evidence that the child is having serious issues with the other parent. Absent such evidence, this parenting plan communicates to the family court that this parent undervalues the other parent’s relationship with the child–which can be a deciding, and negative, factor in close custody cases.

A poorly conceived parenting plan can communicate a party’s lack of interest in the process or a disregard for the other party’s relationship with the child. A well crafted parenting plan, especially in conjunction with affidavits that justify that plan, can communicate that parent’s serious consideration of what is in the child’s best interests. I’ve seen family courts adopt one party’s proposed parenting plan verbatim if sufficient thought has been put into that plan and that party’s temporary hearing affidavits justify the proposed plan. That should be every litigant’s goal in drafting parenting plans.