Chapter Ten Child Custody
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A. Evolution of Parental Rights to Custody, Access, and Participation
Custody cases in South Carolina must be viewed in two segments. The older cases were generally brought when a parent died. See Williams v. Rogers, 224 S.C. 426, 79 S.E.2d 464 (1954) (involving a mother's successful action to regain custody of her son from her late husband's parents); Douglass v. Merriman, 163 S.C. 210, 161 S.E. 452 (1931) (granting a father custody as against his late wife's parents); Alewine v. McGill, 141 S.C. 116, 139 S.E. 172 (1927) (finding the father of an infant to have the "highest claim" to its custody as against his late wife's parents); Watson v. Watson, 134 S.C. 147, 132 S.E. 39 (1926) (upholding custody of an infant in his late father's father to whom the child's mother had conveyed the child in a deed); Busbee v. Reese, 125 S.C. 121, 118 S.E. 185 (1923) (holding a fit father's right to custody superior to that of his late wife's mother). Alewine v. McGill, 141 S.C. 116, 139 S.E. 172 (1927), is a case representative of the older custody opinions. Custody was awarded to the father as opposed to the maternal grandfather shortly after the mother's death. The father's paramount claim founded in the common law overcame his previous transgressions.
The historical evolution of the law of child custody in South Carolina is important because some of the early principles continue to surface in the modern cases. Although South Carolina was early to recognize the best interest of the child standard, there are a number of cases in which great consideration is given to the rights of the parents. The paramount right of the father, while rejected in Ex parte Schumpert, 40 S.C.L. (6 Rich.) 344 (1853) (upholding custody in the mother), was the basis of the decision in Ex parte Hewitt, 45 S.C.L. (11 Rich.) 326 (1858). Custody was granted to the father even though the Supreme Court alluded to the best interest standard and the Tender Years Doctrine ("age of nurture"). The priority of the father, in line with the general Anglo-American approach at the time (see King v. DeManneville, 102 Eng. Rep. 1054 (K.B. 1804) (holding that a father is entitled to custody even of an "infant at the breast of its mother")), was derived from the father's common law duty to support his children. In Hewitt and in Busbee v. Reese, 125 S.C. 121, 125, 118 S.E. 185, 186 (1923), language of the Supreme Court suggested that the father must be found unfit before custody could be granted to another party. See also Shelley v. Westbrooke, 37 Eng. Rep 850 (Ch. 1817), in which Percy Bysshe Shelley, the famous poet, was denied custody of his children due to his immoral conduct and way of life (and, as well, due to his radical political and religious views). See also Alewine v. McGill, 141 S.C. 116, 139 S.E. 172 (1927); Ex parte Davige, 72 S.C. 16, 18, 51 S.E. 269, 270 (1905) (both upholding the paramount custody right of the father).
No fine line separates the old and the modern cases, but the introduction of divorce made custody proceedings more complicated and more frequent. Today, neither the father nor the mother are entitled to a presumption in favor of one having custody over the other.
In South Carolina, in custody matters, the father and mother are in parity as to entitlement to the custody of a child. When analyzing the right to custody as between a father and mother, equanimity is mandated. We place our approbation upon the rule that in South Carolina, there is no preference given to the father or mother in regard to the custody of the child. The parents stand in perfect equipoise as the custody analysis begins.
Kisling v. Allison, 343 S.C. 674, 678, 541 S.E.2d 273, 274 (Ct. App. 2001).
Legislation expands and clarifies the Court of Appeals' statement:
Rights and duties of parents regarding minor children.
The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children's school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.
S.C. Code Ann. § 63-5-30 (Supp.).
The legislature added the following section in 2012:
Notwithstanding the custody arrangement and in addition to all rights and duties given to parents pursuant to Section 63-5-30, each parent has equal access and the same right to obtain all educational records and medical records of his or her minor children and the right to participate in the children's school activities and extracurricular activities that are held in public locations unless prohibited by an order of the court or State law.
S.C. Code Ann. § 63-15-260 (Supp.).
B. Jurisdiction
1. Subject Matter Jurisdiction
As discussed more fully in the chapter on jurisdiction, if the family court lacks subject matter jurisdiction, it cannot obtain it. A challenge to subject matter jurisdiction can be raised at any time during the proceeding, even at the appellate level. Any action taken by a court without subject matter jurisdiction is void.
The family court has no jurisdiction over the custody of a child who reaches 18 years of age. In Holcombe v. Kennison, 300 S.C. 479, 388 S.E.2d 807 (1990), the Supreme Court stated that "'Child' is statutorily defined as a person under eighteen years of age. S.C. Code Ann. §§ 20-7-390 [now repealed] and -490(A) (1985) [now § 63-7-20(3) (2009)]. The family court's jurisdiction to determine custody matters applies only to children." Holcombe at 480, 388 S.E.2d at 808 (holding that, because the daughter had reached 18 years of age, the issue was moot as to whether the family court had erred in declaring that the daughter's marriage was invalid and, therefore, she had not become emancipated as a result of getting married). The same definition of "child" is in S.C. Code Ann. § 63-15-302(A) (2009).
The family court's authority to hear and determine cases involving child custody issues is provided in S.C. Ann. § 63-3-510(A)(1)(e) (2009).
Except as otherwise provided herein, the court shall have exclusive original jurisdiction and shall be the sole court for initiating action:
(1) Concerning any child living or found within the geographical limits of its jurisdiction:
. . . . (e) Whose custody is the subject of controversy, except in those cases where the law now gives other courts concurrent jurisdiction. In the consideration of these cases, the court shall have concurrent jurisdiction to hear and determine the issue of custody and support.
Additional authority to decide custody issues in divorce cases is provided in S.C. Code Ann. § 20-3-160 (1976):
In any action for divorce from the bonds of matrimony the court may at any stage of the case, or from time to time after final judgments, make such orders touching the care, custody, and maintenance of the children of the marriage, and what, if any, security shall be given for the same as from the circumstances of the parties and the nature of the case and the best spiritual as well as other interests of the children may be fit, equitable and just.
In 2012, the legislature further expained the authority of the family court in deciding child custody issues:
(A) The court shall make the final custody determination in the best interest of the child based upon the evidence presented.
(B) The court may award joint custody to both parents or sole custody to either parent.
(C) If custody is contested or if either parent seeks an award of joint custody, the court shall consider all custody options, including, but not limited to, joint custody, and, in its final order, the court shall state its determination as to custody and shall state its reasoning for that decision.
(D) Notwithstanding the custody determination, the court may allocate parenting time in the best interest of the child.
S.C. Code Ann. § 63-15-230 (Supp.).
(A) In issuing or modifying an order for custody affecting the rights and responsibilities of the parents, the order may include, but is not limited to:
(1) the approval of a parenting plan;
(2) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent;
(3) the award of joint custody, in which case the order must include:
(a) residential arrangements with each parent in accordance with the needs of each child; and(4) other custody arrangements as the court may determine to be in the best interest of the child.
(b) how consultations and communications between the parents will take place, generally and specifically, with regard to major decisions concerning the child's health, medical and dental care, education, extracurricular activities, and religious training;
S.C. Code Ann. § 63-15-240 (Supp.).
The family court is permitted to issue ex parte orders for temporary child custody, where conditions warrant, when the following circumstances exist:
(1) The summons or rule to show cause cannot be served; or
(2) The defendant has failed to obey the summons or rule to show cause; or
(3) The defendant is likely to leave the jurisdiction; or
(4) A summons or rule to show cause would be ineffectual; or
(5) The safety of the plaintiff is endangered; or
(6) A defendant on bond or on probation has failed to appear.
S.C. Code Ann. § 63-17-400 (2009). The statute also authorizes the family court to issue arrest warrants and...
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