family law

Appeals Court Re-Affirms Sole Custody Preference In Family Court Contested Cases

A majority of custody cases settle with an agreement to share joint custody of children. Regardless, the court of appeals has re-affirmed their preference that awards of joint custody be granted only in exceptional circumstances in contested cases.

When parents have separated and are fighting over custody of children they will often not act in the best interests of their children. Blinded by emotion, they are more likely to hurt their children either directly or indirectly in attempts to strike our at the other parent.

South Carolina has a long established preference for sole custody awards in cases where a custody matter has proceeded to trial.  Most recently, in the matter of Clark v Clark , the South Carolina Court of Appeals re-affirmed sole custody as the preferred parenting arrangement in contested custody rulings.

The Court did this while, perhaps counterintuitively, upholding a ruling from the trial court granting joint custody to a divorcing couple.  The Clark court carefully set out specific, and “exceptional”, reasons for upholding this award of joint custody while affirming their preference for sole custody determinations.

The parties in Clark had been following a week on/week off temporary custody ruling for 14 months at the time of the final hearing. By the time the court of appeals heard the case and additional 29 months had passed. The court found the children were doing very well and that “the passage of time and the good reports on Child’s welfare and mental adjustment to the situation comprise exceptional circumstances warranting joint custody”.

However,  in contested custody matters, the court made clear that the policy of the family courts is to award joint custody only in exceptional circumstances because joint custody awards are often harmful and confusing to children. The court ruled:

In determining joint custody is usually considered harmful to and not conducive to the best interest and welfare of a child, our courts have explained the disfavor as follows: 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.

Lewis v. Lewis, 400 S.C at 365, 734 S.E.2d at 327-28 (quoting Scott v. Scott, 354 S.C. 118, 125-26, 579 S.E.2d 620, 624 (2003)).

In practical terms, then, what is required to for a person to prevail when requesting sole custody of a minor child?  Clark advises us to look to the relationship and practice of the parties: Is their relationship volatile or cooperative, is the child old enough to adjust to regular visitation involving many small periods of time, are the parents voluntarily practicing a joint custody type of visitation, is the child generally happy and well adjusted with a joint custody type of visitation plan?

While the parenting arrangements established for many of today’s families involve agreements for joint custody, the Clark case tells us that when this issue is left to a judge, sole custody is preferred and the burden will be on the party seeking joint custody to prove to the court how the arrangement will be in the best interests of the child.

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