When parents are contemplating divorce, nothing evokes more anxiety than the issue of child custody. Courts use the “best interest of the child” standard in making custody determinations, but how is that standard applied?
I. Factors considered in custody determination
While courts always use the “best interests of the child” as the yardstick for making custody decisions, that term can mean different things to different people. Both case law and the South Carolina Code give specifics that a court (1) has to consider and (2) may consider when making these difficult determinations.
In making a custody determination, the family court must consider the following: character, fitness, attitude, and inclinations on the part of each parent as they impact the child. 1Divine v. Robbins, 385 S.C. 23, 32, 683 S.E.2d 286,291(Ct. App. 2009). In addition, the court should review the following: psychological, physical, environmental, spiritual, educational, medical, family, emotional, and recreational aspects of a child’s life. 2Id.
The South Carolina Code also provides other areas to be given weight in custody determinations:
(1) “Tender Years Doctrine.” The “Tender Years Doctrine” has been abolished; this doctrine stated a preference for awarding custody to the mother of a child of tender years; the law is supposed to be gender- neutral;
(2) Religious faith. If possible, the court shall award custody to the parent who shares the same religious faith of the child;
(3) Child’s preference. The child’s preference must be considered, given the child’s age, experience, maturity, and ability to express a preference;
(4) Physical or sexual abuse. Court must give weight to evidence of physical or sexual abuse.3S.C. Code Ann. § § 63-15-10; 63-15-20, and 63-15-40 (Supp. 2009).
II. Consideration of sexual misconduct in custody disputes
Litigants frequently ask what effect, if any, a parent’s adultery will have in determining custody. The law in South Carolina is that, unless the parent’s sexual misconduct reaches the level of flagrant promiscuity, the sexual misconduct is not in and of itself regarded as harmful to the child.4Chastain v. Chastain, 381 S.C. 295, 302, 672 S.E.2d 108, 112 (Ct. App. 2009). If, however, the child is exposed to the misconduct and it can be shown that the conduct is having a harmful effect on the child, then the court will consider the effects.5Id.
Case law has not defined what constitutes “flagrant promiscuity.” In 1988, South Carolina appellate courts addressed, for the first time, the effect of a parent’s promiscuity in a custody dispute in Boykin v. Boykin.6Boykin v. Boykin, 296 S.C. 100, 102, 379 S.E.2d 884, 886 (Ct. App. 1988). In Boykin, a case involving a post-divorce change in custody, the mother had had sexual relations with at least five men in less than a year.7Id. The testimony indicated that the mother was accustomed to partying to the early morning hours, drinking beer, and smoking marijuana.8Id. The court held that flagrant promiscuity would inevitably affect the welfare of a child.9Id. Thus, the Court of Appeals reversed the lower court and gave custody to the father.10Id.
In the recent case of Chastain, the court opined that flagrant promiscuity, being an exception to the general rule, must be invoked sparingly.11Chastain at 302, 672 S.E.2d at 112. The wife in Chastain had engaged in two extramarital affairs, and the husband had engaged in one.12Id. The family court had found that the wife had engaged in flagrant promiscuity and gave custody to the father.13Id. at 300, 672 S.E.2d at 111. The Court of Appeals held that is was error to find two affairs constituted flagrant promiscuity but held that it was nevertheless in the children’s best interest for father to remain primary custodian of the children.14Id. at 304, 672 S.E.2d at 113.
III. Sex offender status, psychological disorders, and child’s preference in custody disputes
Payne v. Payne deals with a number of very difficult custody issues: (1) father’s status as a convicted sex offender; (2) Mother’s psychological disorder, and (3) the child’s preference.15Id. at 68, 674 S.E. 2d at 517. If nothing else, this case illustrates the complexity of many custody disputes.
In Payne, Father had been convicted in 1989 of Criminal Sexual Conduct (CSC).16Id. at 67, 674 S.E. 2d at 517-18. Father had undergone counseling and other remedial measures required of him following his conviction.17Id. at 65, 674S.E.2d at 516. No details were given regarding the exact nature of the offense. Although the court was well aware of Father’s conviction, it did not find it relevant to the custody issue. 18Id. at 67, 674 S.E. 2d at 517.
The family court stated that it based its custody decision primarily on Mother’s emotional and psychological abuse of the child; she had subjected the child to numerous unnecessary medical procedures and hospitalizations.19Id. at 69, 674 S.E.2d at 518. Mother was initially diagnosed as having Munchausen Syndrome by Proxy but that diagnosis appears to have been discarded.20Id She had a serious unnamed personality disorder, and an expert witness testified that Mother’s disorder affected her ability to parent.21Payne v. Payne, 382 S.C. 62, 674 S.E.2d 515 (Ct. App. 2009).
The child was approximately 13 years old; his stated preference was that things should “stay the way they were,” which meant stay with Mother.22Id. at 65, 674 S.E.2d at 516. The appellate court stated that while the lower court considered the child’s preference, the preference is never controlling.23Id. at 67, 674 S.E. 2d at 517. In other words, the court gave more weight to the psychological issues of the mother.
V. Joint Custody
Joint physical custody, as opposed to joint legal custody, exists when the parents share equal, or near equal, physical custody of the children. Joint legal custody usually refers to joint decision-making. In South Carolina, joint physical custody is not to be awarded without a finding by the court that exceptional circumstances exist.24Spreeuw v. Barker, 385 S.C. 45, 61, 682 S.E.2d 843, 851 (Ct. App. 2009). Without exceptional circumstances, the law regards joint custody as typically harmful to children and not in their best interests.25Id. In Spreeuw, the family court awarded joint custody but made no finding as to any exceptional circumstances.26Id. However, the appellate court affirmed the family court’s decision, due to the extreme length of time – seven years – that had transpired during the appellate process.27Id. The children, who were five and twelve at the time of the family court’s decision, were now twelve and nineteen.28Id. The appellate court was thus reluctant to undo the current situation. 29Id.
In some states, joint physical custody is the rebuttable presumption or the preferred first option for the court to consider. Proponents of joint custody often cite the following factors in support of their position:
(1) the psychological benefits to the children of having meaningful relationships with both parents;
(2) the psychological benefits to the parents;
(3) the encouragement of child support payments, arguing that parents are more likely to pay child support when they have meaningful contact with the child
(4) a reflection of modern social norms, meaning today’s fathers tend to be more involved in parenting than in past times; and
(5) judicial economy, meaning it is easier and more predictable for courts to have joint custody as the rebuttable presumption.30Melissa A. Tracy, The Equally Shared Parenting Time Presumption – A Cure-All or a Quagmire for Tennessee Child Custody Law? 38 U. of Mem. L.Rev. 153, 173 (2007).
The arguments against joint custody are as numerous as those on the other side:
(1) the alternatives to presumptive joint custody as the way to encourage continuing contact, meaning joint custody applied to contentious parties makes for continuing contact with continuing contentiousness;
(2) the inadequacy of the social science data, meaning most studies of joint custody involve situations in which the parents chose joint custody;
(3) the view that a presumption is an “easy out” for a judge;
(4) the detrimental effects of divorce bargaining, meaning the two main bargaining chips are custody and alimony, and to remove one would lead to unequal bargaining powers by the parties;
(5) the dangerous effect of the presumption when domestic violence is present; and
(6) the imposition of financial burdens where child support is calculated presuming the payor will be spending equal time with the child, but he or she does not. 31Id. at 178.
This area of the law is very fact-specific, and courts have a great deal of discretion in deciding custody matters.
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|1.||Divine v. Robbins, 385 S.C. 23, 32, 683 S.E.2d 286,291(Ct. App. 2009).|
|3.||S.C. Code Ann. § § 63-15-10; 63-15-20, and 63-15-40 (Supp. 2009).|
|4.||Chastain v. Chastain, 381 S.C. 295, 302, 672 S.E.2d 108, 112 (Ct. App. 2009).|
|6.||Boykin v. Boykin, 296 S.C. 100, 102, 379 S.E.2d 884, 886 (Ct. App. 1988).|
|11.||Chastain at 302, 672 S.E.2d at 112.|
|13.||Id. at 300, 672 S.E.2d at 111.|
|14.||Id. at 304, 672 S.E.2d at 113.|
|15.||Id. at 68, 674 S.E. 2d at 517.|
|16.||Id. at 67, 674 S.E. 2d at 517-18.|
|17.||Id. at 65, 674S.E.2d at 516.|
|18.||Id. at 67, 674 S.E. 2d at 517.|
|19.||Id. at 69, 674 S.E.2d at 518.|
|21.||Payne v. Payne, 382 S.C. 62, 674 S.E.2d 515 (Ct. App. 2009).|
|22.||Id. at 65, 674 S.E.2d at 516.|
|23.||Id. at 67, 674 S.E. 2d at 517.|
|24.||Spreeuw v. Barker, 385 S.C. 45, 61, 682 S.E.2d 843, 851 (Ct. App. 2009).|
|30.||Melissa A. Tracy, The Equally Shared Parenting Time Presumption – A Cure-All or a Quagmire for Tennessee Child Custody Law? 38 U. of Mem. L.Rev. 153, 173 (2007).|
|31.||Id. at 178.|