Contemporary culture appears to have lost its understanding of the historic linkage between marriage and paternity. In the time before genetic-based paternity testing (basically before the mid-1990’s) there was no way to be certain who the biological father of any particular child was. Marriage, and the presumption that a child born of a marriage was the husband’s child, was a method of binding men to children. This presumption was based on never-fully-accurate notions of female sexual virtue and that marriages were intended to be “fruitful.” Still it was a valuable fiction. In contrast, for children born outside of a marriage, paternity was never assumed. As the old folk saying went, “mother’s baby; daddy’s maybe.” It wasn’t until the mid-20th century that American law even developed paternity rights and obligations when a child was not born into a married family.

While the culture may have forgotten the basis of these historic presumptions, these presumptions remain embedded in the law. A child born of the marriage is legally the child of both spouses (even when, as in same-sex marriages, that is a biological impossibility) and both spouses have equal rights to custody of that child. In contrast, a child born outside of a marriage is in the sole custody of the mother and any rights a man might have to that child are purely in the mother’s discretion until that man establishes legal paternity–at which point he gains an equal presumption on the right of custody to the child.

According to a 2015 United States Department of Agriculture report, “Middle-income, married-couple parents of a child born in 2015 may expect to spend $233,610 ($284,570 if projected inflation costs are factored in) for food, shelter, and other necessities to raise a child through age 17. This does not include the cost of a college education.” Yet I encounter numerous fathers every year who engage in text message flame wars or law enforcement involvement with their baby mamas because they will not invest the funds required to obtain a judicial order of paternity and visitation/custody. Given the cost of raising a child, investing the $3,000 to $4,000 (my typical initial retainer for a visitation case) to remove complete control of one’s relationship with one’s child from a hostile co-parent is one of the best investments one can make.

As long as a father is realistic–not seeking joint or primary custody of a child who has never lived with him when the mother is fit–and the mother not unduly resistant, I can often obtain a final order giving that father autonomous visitation rights and access to the child’s medical and educational providers within the budget of that initial retainer. Even in cases in which the mother is unduly resistant, I have rarely incurred an attorney fee in excess of $15,000–and typically those unduly resistant mothers are required to reimburse a portion of my fee.

Raising a child is an expensive undertaking. For unwed fathers stressed that their relationship with their child is subject to the whims of a hostile mother, obtaining an order of paternity and visitation is an excellent investment. It certainly beats flame wars and police involvement.

Interesting article in yesterday’s New York Times about parents using the other parent’s occupation [one involving moderate-to-high risk of exposure to COVID-19] to justify emergency relief changing custody or denying visitation. Evidently some family courts are accepting this argument and granting relief on this basis, under their belief that they are protecting children from COVID-19 and their actions are “in the best interests of the children.”

Normally, I would be completely sympathetic to family court judges limiting visitation or changing custody based upon a parent’s high-risk behavior. Here, I find these actions ill-advised–perhaps even despicable. These parents place themselves at risk to help society function (for medical professionals, they risk their own life and health to protect the public health). Folks who are willing to do this should probably get the benefit of the doubt in weighing their desire to maintain a relationship with their children versus the risk of exposing their children to COVID-19. I certainly wouldn’t want parents deciding, as some of these parents did, to not assist in a public health crisis because they risk losing visitation or custody.

I’m not shocked that some attorneys are assisting those parents who want to use COVID-19 as a basis to deny visitation or change custody–I just wouldn’t be that attorney. I wish I could say I was shocked that family court judges are buying this argument, but the problem (one I have often noted) of vesting tremendous equitable powers in a single judge invites this sort of God-like decision making.

A few weeks ago I blogged about visitation denial in the COVID-19 era, as many of my clients had questions on whether they could deny or demand visitation. More than a few South Carolina parents have used this crisis as a justification to deny visitation. That blog was an acknowledgment of my uncertainty and an attempt to predict what factors the family court might consider in addressing contempt allegations once they reopened for business.

On April 6, 2020, our Governor, Henry McMaster, issued Executive Order No. 2020-21, which is better known as his “Stay at Home” order. That order provides specific guidance on this issue. At page 8 of the order in Section E(7), it lists as an “Essential Activity” [meaning it is not subject to travel restrictions] “Traveling as required by law, to include attending any court proceedings and transporting children as required by court order or custody agreement.” Evidently, the Governor considers complying with visitation orders to be an essential activity.

Given this order, I do not see how any South Carolina family court judge could subsequently excuse a parent for denying visitation solely on the basis of this pandemic. Parents who do so, and attorneys who encourage them to do so, are inviting contempt.

COVID-19 is the first airborne global pandemic to take place since the development of specialized family courts in the United States. Never before has mandated social distancing interacted with the awesome contempt powers of family court visitation orders. Thus, I am getting numerous questions about complying with visitation orders from custodial parents who are considering refusing to send their children to the other parent or some third-party who has court-ordered visitation. I know my colleagues are getting similar questions.

Any attorney giving definitive advice on this topic is either much wiser or more foolish than I. We really cannot know how the family courts will resolve contempt petitions regarding COVID-19 related denied visitation. Different family court judges, and even appellate panels, may resolve the exact same fact pattern differently. Further, I am never comfortable advising clients to engage in actions that they believe put their children at risk but I am also unwilling to advise clients not to follow valid court orders. Ultimately my clients need to balance their tolerance for the risk of a family court contempt finding against the risk of exposing their children to COVID-19.

However, I have certain opinions on what the family courts will ultimately consider relevant in deciding whether to hold a parent in contempt for denying visitation. This is the advice I am providing all clients who ask these questions.

1) The mere fact that we are in the midst of a pandemic is not a basis to deny visitation.

2) If the custodial parent is denying visitation, put the basis of the denial in writing at the time the decision is made. That way, when that parent needs to defend a contempt petition, the basis for denying visitation will be clear and the client can avoid claims that it was simply a post-hock justification.

3) Offer additional and daily electronic visitation. Many family law attorneys are using zoom to video conference clients and I would suggest it for electronic visitation. It’s a free app and offers greater interactivity than Skype or FaceTime. Allowing such daily/frequent contact may defeat a finding of willfulness or reduce the contempt sanction.

4) If the custodial parent is denying visitation, offer reasonable makeup visitation in writing as part of the communication informing the other parent of the visitation denial. If the COVID-19 related concern is temporary, make the offer of makeup visitation at the time of the denial. If the concern is ongoing (perhaps the other parent works in a nursing home or is an ICU nurse), note that the other parent can have makeup visitation when the crisis passes.

5) If the custodial parent can get the other parent to agree to forgo visitation, preferably in writing, that parent is almost certainly safe from any subsequent contempt proceeding.

6) If the other parent or someone in their household has COVID-19, the custodial parent is almost certainly safe in denying visitation so long as that parent offers makeup visitation when they recover.

7) If the other parent or someone in their household has been exposed to COVID-19, the custodial parent is probably safe in denying visitation so long as that parent offers makeup visitation once the incubation period passes.

8) If the custodial parent simply refuses visitation because that parent believes the other parent is at greater risk of contracting COVID-19 and infecting the child, the custodial parent is on much less safe ground in denying visitation. The factors I think the family court will consider in whether to hold such custodial parents in contempt in are:

a. Did the custodial parent offer reasonable makeup visitation when denying the visitation.

b. Is the custodial parent practicing extreme social distancing for him or herself and the child. If the custodial parent is out and about, and the child is having play dates, I think the court is more likely to hold that parent in contempt.

c. Is the basis of the custodial parent’s denial consistent with that parent’s other actions. If that parent is equally high risk or exposing the child to others of equally high risk, the court is likely to hold that parent in contempt.

d. Has that custodial parent previously been held in contempt for visitation denial. I think the court will be more suspicious of such parents’ justifications.

9) The following is South Carolina specific. The family courts are closed to all but emergencies until at least May 1st. Even if the other parent objects to the denied visitation, the custodial parent still might be able to work out some alternative visitation that satisfies the other parent before he or she files a rule to show cause or gets that rule heard.

10) Something that’s not relevant yet but may become increasingly relevant as the pandemic proceeds is if the child or the other parent has recovered from COVID-19. My understanding is that if the child has recovered from it there may no longer be a health risk from exposure. Thus there would be no justification for visitation denial. Similarly, my understanding is that if the other parent has recovered from COVID-19, that parent no longer poses a risk from exposure (that parent’s other household members still might). Our subsequent knowledge of this virus may prove that recovery from COVID-19 does not eliminate the risk of exposure or transmission so this advice is provisional.

Stay safe.

An issue that commonly arises in interpreting custody orders is whether the non-custodial parent is allowed to delegate his or her (in this culture, mostly his) visitation to third-parties during his custodial periods when the custody order is otherwise silent on the issue. South Carolina case law remains silent on this dispute. However, while acknowledging that many of my peer disagree with me, logically I think the answer has to be yes.

The reason this is even a disputed issue is imprecise thinking about what it means to have “physical custody” of a child. We tend to think of “physical custody” as synonymous with physical possession. Thus, many of my peer believe that, absent explicit authorization, one cannot delegate visitation time to a third-party because one’s right to “physical custody” is solely the right to physically possess the child.

However physical custody is not synonymous with physical possession. As I’ve noted before, physical custody is really the right to control the child’s time. We can see this most logically when we consider a child who attends school. The custodial parent has not lost physical custody of that child merely because that child is in school. Rather, having physical custody gives that parent the right (subject to state laws on truancy and any limitations in the custody order) to determine whether the child goes to school that day. If the child is ill, it is the parent who has physical custody of the child that day who determines whether the child goes to school. A parent with physical custody of the child for a particular day may decide whether that child misses school for vacation or family events.

A parent with physical custody of the child for a particular day may also decide whether to allow that child to engage in extracurricular activities, attend a sleepover, or visit friends or family. Allowing the child to spend time away from the parent who has physical custody does not cause that parent to lose physical custody. “Physical custody” is not physical possession but a right to control that child’s time.

And, since physical custody is the right to control that child’s time, a non-custodial parent who has custodial/visitation periods pursuant to a court order has the right to control that child’s time during his custodial/visitation periods. There is no logical reason this right doesn’t include the right (subject to any limitations the court order may impose) to have third-parties watch the child during that parent’s time.

I’ve yet to encounter a custodial parent who believes she has lost physical custody of her child because that child is in school, attending extracurricular events, with her family, or at a friend’s home. The logical question to ask a primary custodial who contends the other parent does not have a right to have third-parties exercise physical possession of a child during the other parent’s custodial periods is whether she loses “custody” when the child is with third-parties during her custodial periods. I cannot imaging any custodial parent answering that question “yes.”

The right of non-custodial parents to delegate their parenting time during their custodial periods is only a disputed legal issue because no South Carolina attorney sees fit to appeal an adverse ruling.

I would love to see the May 24, 2017 Court of Appeals opinion in Baker v. Hardwick get published. Not just because T. Ryan Phillips and I share office space; not just because I referred him the appeal that he turned into a victory reversal. Baker establishes an important legal principle: the outer limits of standing for the family court to award visitation to non parents.

In Baker the child was placed with the Bakers [the child’s distant relatives] when DSS brought a removal action against the child’s parents. DSS eventually return the child to Hardwick, the child’s father. Meanwhile the Bakers filed for custody. Realizing that Hardwick was likely fit, the Bakers approached trial seeking visitation if they were not awarded custody. The family court awarded Hardwick custody but awarded the Bakers visitation. Before Hardwick’s motion to reconsider was resolved, he was held in contempt for refusing the Bakers visitation. He appealed the contempt order and the underlying visitation order but was unsuccessful in obtaining a stay of the visitation order during appeal.

The Court of Appeals opinion reversed both orders. It found the family court incorrectly determined that the Bakers had standing to seek visitation. The opinion notes the four ways that a non-parent can have standing to obtain visitation: the grandparent visitation statute [S.C. Code Ann. § 63-3-530(A)(33) (Supp. 2016)], the sibling visitation statute [S.C. Code Ann. § 63-3-530(A)(44) (2010)], the De Facto custodian statute [S.C. Code Ann. § 63-15-60(B)], and the psychological parent doctrine. Middleton v. Johnson, 369 S.C. 585, 594, 633 S.E.2d 162, 167 (Ct. App. 2006). Finding none of the four could be applicable here, it found the Bakers lacked standing to seek visitation.

Baker should have been published. It establishes important law on the issue of standing of non-parents to seek visitation in South Carolina. This is an issue that frequently recurs and the family court bar and bench would benefit from the guidance and authority it would supply as a published opinion. There is no published case law that succinctly establishes the various ways that a non-parent party can have standing to seek visitation. This unpublished opinion does succinctly state this law. Because standing can be obtained via two separate statutes (with two different methods within one statute) and one judicially created doctrine, it can be hard to establish the limitations of standing without citing to multiple authorities. Being able to cite to one authority to establish this matter would be helpful.

Further, there is obvious confusion on the limits of standing to seek visitation, as evidenced by the incorrect decision by the lower court. Absent clear authority, this is a incorrect decision I could see other family court judges making. Meanwhile Hardwick case was ordered to make his child available for visitation when the court had no authority to so order him. He was even found in contempt for failing to comply with an ultimately invalid order. The potential for intrusion into a fit parent’s constitutionally protected right to determine who has relationships with his or her child(ren) that stems from this lack of authority would be greatly reduced by having clear authority on this matter.

The issue resolved in this appeal is subject to frequent recurrence, involves constitutionally protected rights, and subjects parents to potential incarceration if the family court incorrectly determines standing. For all of these reasons, this opinion should be published. Attorneys who agree with me, and wish to support Mr. Phillips in his motion to publish, are welcome to send him a supporting affidavit.

Folks hire family law attorneys not only expecting to have their domestic disputes resolved, but expecting them to be resolved quickly and inexpensively. The method to accomplish this is to reach agreements. Thus most litigants want their attorneys to be thinking settlement early in the process.

For most domestic disputes this is a reasonable expectation. I can be ready to negotiate spousal support as soon as I understand the parties’ income and expenses. I can be ready to negotiate child support as soon as I have information to run the child support guidelines. I can be ready to negotiate property division as soon as I understand the value and acquisition of the parties’ assets and debts. Even custody is often amenable to early resolution if both parties merely want the status quo to be formalized: often it’s simply a matter of transitioning the division of parenting responsibilities from a common household to separate households.

But experience has taught me not to negotiate final resolutions on custody and visitation with parents who have serious mental health or substance abuse issues until I have lived with the case for months–the one exception being when these parents agree to a final order that provides them no set visitation or visitation solely at my client’s discretion. To reach a final resolution on visitation with such folks early in the litigation process is to almost guarantee future chaos for my client. Given that clients who have attempted to co-parent with a substance-abuse addled or seriously mentally ill parent come to me because they are exhausted by the effort, a desire for a quick resolution is very understandable. Unfortunately it is the case least amenable to one.

There are two reasons for this. The first is that the other parent has often minimized or hidden the level of his or her mental illness or substance abuse from my client. Lying is endemic when these circumstances exist. While my client may think he or she understands the other parent’s issues, experience teaches me that the situation is almost always worse than my client thinks. I will want my client to have full knowledge of the other parent’s situation–which often requires substance abuse testing or psychological evaluations, and sometimes requires discovery–before we even begin negotiating.

Further, such clients have often spent years in an unhealthy co-parenting dynamic. Often they have left the child in the care of the other parent while harboring serious concerns over the child’s safety. This dynamic needs to end for the parenting chaos to end. Other times they have attempted to control the other parent’s behavior in an attempt to protect their child. These clients need to let go of their illusion of control and stop taking responsibility for the other parent’s behavior before they can achieve internal peace.

The second reason is that custody litigation should be a catalyst for a substance abusing or seriously mentally ill parent to get treatment. The six month period after the commencement of custody litigation provides telling information about the other parent’s commitment to getting healthy. For the addicts and mentally ill there is no straight path to recovery but ideally there will be substantial forward progress in that six month period. Whether there has been progress, and how much progress, should guide the other parent into what a reasonable visitation agreement might entail.

Any such agreement should contain provisions allowing the client to monitor the other parent’s mental health or substance use. Typically when reaching a custody and visitation agreement with a party who suffers from serious mental illness, I will demand a provision requiring that parent to remain in treatment until released by their mental health professional and to sign a release allowing my client and the treating professional to discuss any concerns over that party’s mental health. When reaching an agreement with a parent who has a history of substance abuse, I will demand my client have the right to seek testing (at my client’s initial expense) upon request, with a consequence for a failed or delayed test. However such protections are not failsafe. Many mental health professionals are reluctant to provide information that invades patient confidentiality and no family court order can require such professionals to be forthcoming. For substance abuse testing, no test is 100% accurate and custodial parents’ fears of false negative results can neither be dismissed nor alleviated.

Some mentally ill or substance abusing parents will make no progress in addressing their issues during the six months after litigation commences. For such cases, many attorneys might suggest an order of permanent supervised visitation. For reasons explained here I am not a proponent of permanent supervised visitation for substance abusing parents or parents with treatable mental illnesses. Experience has taught me that the only way for my clients to avoid chaos in co-parenting with parents suffering from untreated substance abuse or serious mental illness is to give that client complete control over the other parent’s contact with the child.

A few mentally ill or substance abusing parents will make substantial progress in addressing their issues during the six months after litigation commences. Such parents might be able to resume their prior level of involvement with the child–or have even greater involvement with the child–so long as the conditions listed above are put in place.

And most mentally ill or substance abusing parents will make some, but limited, progress in addressing their issues during the six months after litigation commences. For this (common) circumstance, there is no one-size-fits-all solution. The seriousness of that parent’s substance abuse or mental illness, the child’s ability and comfort level in interacting with that parent when that parent isn’t fully healthy, and the level of progress that parent has made in the six month period are just some of the factors to consider in fashioning a visitation agreement. However such agreements are much better tailored to the facts and circumstances of that particular case at the end of the six months than at the beginning of litigation.

The desire of parents who have co-parented with someone suffering from substance abuse or serious mental illness to find a resolution that allows them peace is completely understandable. Unfortunately, for the reasons explained above, it is the worst type of case for speedy resolutions.

Calling bullsh*t on custodial parents who let the children decide their visitation is one of my most controversial and by far my most commented-upon blog.  In that blog I argue that it is the custodial parent’s job to require the children spend their court-ordered visitation time with the non-custodial parent (assuming that parent wants to exercise his or her visitation time) and that if the custodial parent or children believe such visitation is damaging it is the custodial parent’s responsibility to get the visitation order modified. It is the rare week when some custodial parent doesn’t castigate me for arguing children should be forced to visit the other parent against their wishes–which is only a partial misreading of that blog.

The July 6, 2016 Court of Appeals opinion in Noojin v. Noojin417 S.C. 300, 789 S.E.2d 769 (Ct. App. 2016), vindicates my belief. In Noojin, Father suffered through three years of very limited visitation after the divorce because his ex-wife and their two children were resistant to his visitation. For much of this time Father voluntarily limited his visits in the hope that the children would become less resistant but this didn’t happen. Finally Father demanded his court-ordered visitation and Mother did not force the children to visit. After a three-day trial, the family court found Mother in contempt, ordered that the visitation order be obeyed, and required Mother to reimburse Father $41,375.84 in attorney’s fees and costs. Mother appealed.

The Court of Appeals completely affirmed the family court decision. The opinion contains a lengthy factual recitation describing Father’s attempts to visit and Mother’s and the children’s resistance. On appeal Mother’s primary argument was that she could not be held in contempt for not forcing the children to visit their Father against their will. Based on the specific facts of this case, the Court of Appeals disagreed.

Nothing in the opinion notes the Father engaged in abusive behavior towards the children or that the children were afraid to visit. It noted, “[p]art of Mother’s contemptuous behavior centers on her introduction and implementation of the concept of ‘forced’ visitation as a negative notion, failure to facilitate visitation, and acquiescence in Children’s refusal to participate in visitation.” The lengthy factual recitation describes numerous acts by Mother to undermine Father’s visitation and to align with the children in their resistance to Father. She allowed the children to block Father from their cell phone and disinvite Father from their events. She interfered when Father tried to arrange visitation. She allowed the children to be defiant towards Father. The opinion notes, “our state’s policy to ensure minor children of divorce are not estranged from the noncustodial parent.” Mother’s actions did just that.

The Court of Appeals also affirmed the attorney fee award, noting that fees could be awarded under the “compensatory contempt” doctrine and that Mother’s $5 million in assets and gross monthly income of $23,451 made the award reasonable.

Noojin does not stand for the proposition that any time children refuse to visit the noncustodial parent the custodial parent should be held in contempt, stating “our holding in this regard to the facts presented and do not suggest that in every situation in which a custodial parent fails to force a child to visit a noncustodial parent, such custodial parent should be held in contempt.” However it does stand for the proposition that, in the absence of psychological or physical harm, a custodial parent can be held in contempt for his or her refusal to require minor children to visit the noncustodial parent against the children’s wishes. Given how frequently this occurs, how often custodial parents try to justify this behavior, and how inconsistent South Carolina family judges have been in enforcing visitation orders in these circumstances, Noojin is an important opinion for non-custodial parents who encounter resistance to their visitation.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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