Regaining Custody After Voluntary Relinquishment

Problems within a home can cause parents to temporarily relinquish custody of a child. Once this is done there are specific legal requirements that must be satisfied to regain custody.

Sometimes parent(s) face temporary issues that interfere with parenting minor child(ren). These issues range from the innocuous, such as military deployment, to the more serious, such as drug abuse.

With privacy rules as they are, it is virtually impossible for a third party to have physical custody without some kind of legal authorization, such as In Loco Parentis or a Family Court custody order. Without some kind of legal authority, the third party could not take the child to a doctor, sign the child up for school classes or extra curricular activities, etc.

In most instances, the issues that interfered with a parent’s ability to care for the child(ren) will be cured and physical custody is returned without incident. But what if the third party disagrees and wants to retain custody? 

This issue was recently addressed by the South Carolina Court of Appeals in the matter of Lawson v Smith. Lawson/Mom had sole custody of her daughter. In March of 2012 Mom signed a “Limited Power of Attorney for Care of a Minor Child”, which expired six months later, in favor of Smith. The document stated that Smith was empowered with the responsibility over the Child’s health, education, and general welfare.

Mom eventually sued Smith to regain custody. The Court of Appeals, in reversing the trial court, returned Child to Mom after a straightforward application of rule set forth in Moore v Moore.  

In cases of voluntary and temporary relinquishment of custody the Moore rule presumes that a return of Child to Mom is in Child’s best interests.  In the context of this presumption, Mom must show that

  1. She is a fit parent, able to properly care for the child and provide a good home.
  2. She had an appropriate amount of contact, in the form of visits, financial support or both, while Child was with Smith.
  3. The circumstances under which temporary relinquishment occurred no longer exist.
  4. That the degree of attachment between Child and Smith, even if strong, was not sufficient to award custody to Smith.

Unlike custody disputes between parents, third parties and parents are not on equal footing.  In Lawson v Smith, the Court of Appeals found that Mom was a fit parent who had remedied the circumstances which led to her relinquishment of custody and therefor returning custody to her was in Child’s best interest. 

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