Education Issues in Family Court Agreements
| Publication year | 2023 |
| Pages | 39 |
Helping Clients Navigate Common and Anticipated Issues in Child Custody Cases
By Joshua B. Raffini
Issues involving children permeate the work of family court practitioners. Recent trends towards more frequent joint custody arrangements have expanded the range of topics to be addressed in any comprehensive agreement between parents.[1] Terminology for describing custodial arrangements varies between jurisdictions, and has not always been consistent even in South Carolina; however, the overwhelming trend in custody litigation remains consistent in its shift towards greater division of parental responsibility.[2] Education, perhaps more than any other area, demands the attention of attorneys, litigants and the courts in providing accurate and complete information about how parents will make decisions. To that end, this article will explore the statutory backdrop for division of parental responsibility, relevant case law and practical suggestions for how to incorporate best practices into family court agreements.
Relevant Statutory Framework and Background
In deciding custody issues, "[t] he paramount and controlling factor ... is the best interests of the children."[3] Under the modern statutory scheme, "[t]he court may award joint custody to both parents or sole custody to either parent."[4]Furthermore, "[i]f 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."[5] In issuing initial custody orders or modifying existing custody orders, the statutory scheme requires court consideration of the best interests of the child, sixteen (16) separate statutory factors, and a final "catch all" consideration of "other factors the court considers necessary."[6] If the court awards joint custody, the order must include "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."[7]
The modern statutory scheme, authorizing joint custody and compelling consideration of all options, is in stark contrast to historic norms.
The courts generally endeavor to avoid dividing the custody of a child between contending parties and are particularly reluctant to award the custody of a child in brief alternating periods between estranged and quarrelsome persons. Under the facts and circumstances of particular cases, it has been held improper to apportion the custody of a child between its parents, or between one of its parents and a third party, for ordinarily it is not conducive to the best interests and welfare of a child for it to be shifted and shuttled back and forth in alternate brief periods between contending parties, particularly during the school term. Furthermore, such an arrangement is likely to cause confusion, interfere with the proper training and discipline of the child, make the child the basis of many quarrels between its custodians, render its life unhappy and discontented, and prevent it from living a normal life.
Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (S.C. 1969) (quoting Nelson On Divorce (2nd Ed.), section 15.17) [emphasis added].
The South Carolina Supreme Court has explained that joint custody is still disfavored, notwithstanding statutory amendments that specifically authorize an award of joint custody.[8] In addition, our appellate courts have continued to note that joint custody awards, while they must be based on the best interests of the child, require finding of exceptional circumstances.[9]
Custody awards, and agreements between parents, are not limited to mere designations.[10] A generation ago the South Carolina Court of Appeals decided Paparella v. Paparella and reversed the trial court to award the non-custodial parent expanded visitation.[11] While affirming sole custody to Mother, the Paparella Court found that the limited visitation schedule was insufficient.[12] Referencing Father's substantial involvement in the lives of his children prior to the family court case, the Court of Appeals set an expanded schedule to include extension of weekends through Monday morning, overnight on Thursdays before Mother's weekend, and an equal division of summer. For practitioners, the indication that expanded visitation was not merely allowable but that failure to award such an expansive schedule was reversible error substantially altered the framework of negotiated custodial arrangements.[13]
In addition to the basic statutory scheme concerning custodial arrangements, attorneys should be mindful of related considerations. First, in addition to parental rights and duties found elsewhere in the Children's Code, "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."[14]Second, educational expenses may justify deviation from Child Support Guidelines. While "a rebuttable presumption that the amount of the award which would result from the application of the guidelines ... is the correct amount of child support to be awarded," the guidelines specifically include educational expenses as a possible basis for deviation.[15]
Recent Cases Implicating Education Issues
Several recent cases address division of parental responsibility for educational issues. Perhaps most significantly, the Court of Appeals recently affirmed the trial court's award of joint custody despite obvious acrimony between the parties.[16] The parties alternated placement on a week-to-week basis, with that scheduled affirmed on appeal.[17] Notably, Greene appears to be the first reported South Carolina decision affirming division of final decision-making authority...
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