Going the Extra Mile to Prevail on Your Child Custody Modification Action

By: J. Wyatt Wimberly, Esquire

Ironically, one of the most rewarding things I’ve had the pleasure of doing in my career as a divorce attorney is to officiate a client’s wedding.  While I would never suggest that two people who are not fully committed to marriage “tie the knot,” I would certainly suggest that marriage could eliminate a potential argument against their case for custody/custody modification in situations where the would-be spouses were already seriously contemplating marriage.  An individual who is currently living with a non-spouse romantic companion and is either a) seeking an initial custody determination (where they were never married to the other parent) or b) seeking a modification to an existing custodial Order/Agreement may be left with the decision to either have their significant other move out or to marry them.   As such, I have now had the honor of marrying two clients, as South Carolina is one of three states in which a notary public can perform marriages.  This enabled these client’s to proceed with their custody actions in the most favorable light possible.

If you are subject to an existing Agreement or Order of the Family Court which speaks to custody of your child(ren), you may seek to have custody modified if the circumstances surrounding the best interests of your child warrant such a transfer.  Generally speaking, a party seeking to have a transfer in custody must meet the burden of showing that: 1) the circumstances have substantially changed; 2) the changes occurred after the initial award of custody and, ordinarily, prior to filing the request to change custody; and 3) the changes substantially affect the interests and welfare of the child or children in question. See. Moss v. Moss, 274 S.C. 120, 262 S.E.2d11 (1980.)

There aren’t many guarantees in family law if any at all.  Getting a transfer of custody is no exception.  It is the goal of the Family Court to have the best interests of the child prevail.  As such, for a parent serious about prevailing on a custody/custody modification action, it would behoove them and their attorney to examine the totality of the circumstances surrounding their custodial arrangement and anticipate any and all factors that a Family Court Judge and/or a Guardian ad Litem may consider as their case progresses.

Although there are many factors a judge will examine to determine custody, the inspiration for this article were the actions clients mentioned above, who went the extra mile to ensure that they were viewed in the most favorable light possible.   As you could imagine, both the custodial and non-custodial parents are likely to move on with their lives after Final Orders or Agreements, which includes the possibility of new romantic interests.  As such, Final Orders or Agreements which speak to custody often contain a provision restraining the parties’ from exposing the child(ren) to a non-spouse romantic partner on an overnight basis (in some cases restraining any such exposure at all).  These restraints are based, in part, on South Carolina case law which considers such exposures to be immoral in conjunction with certain South Carolina statutory law.  For example, S.C. Code Ann. § 16-15-70 describes “fornication” as the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried.  S.C. Code Ann. § 16-15-80 goes on to make a conviction of fornication (or adultery) punishable by a mandatory find of $100 to $500, or imprisonment for six months to one year, or both.

Whether it’s going to the great lengths like the individuals above, or taking steps to mitigate other potentially negative facts, it’s important to be committed and prepared to make certain sacrifices and go-the extra mile when facing a child custody battle.