Is a Change Gonna Come to Custody Law in South Carolina?

“It’s been a long, a long time coming, but I know, oh-oo-oh, A change gon’ come, oh yes, it will.” “A Change Is Gonna Come” by Sam Cooke.

Is a change coming to custody law in South Carolina? The concurring opinion of the Honorable Stephanie P. McDonald in the recent case of Samuel James Tomlinson v. Jenna M. Melton, (f/k/a) Jenna M. Tomlinson, Appellate Case No. 2016-002329, would seem to suggest so.

A little background before we dive into the recent decision of the South Carolina Court of Appeals. South Carolina law, while allowing for family courts to award joint or divided custody, disfavors such custody arrangements and states that is should only be awarded under exceptional circumstances. See Clark v. Clark, 423 S.C. 596, 606, 815 S.E.2d 772, 777 (Ct. App. 2018).

It is with this understanding of South Carolina law that we dive into the recent S.C. Court of Appeals’ decision. After a three-day trial, the family court awarded joint custody to the parents with a week-on/ week-off visitation schedule. The father appealed alleging that joint custody was not in the best interest of the child. The Court of Appeals agreed, reversed the decision of the trial court and remanded the case to the family court for the determination of primary custody and child support.

While agreeing with the decision to reverse and remand the case, Judge McDonald issued a concurring opinion indicating that a change may be a coming to South Carolina Custody law. In her concurring opinion, Judge McDonald stated:

I believe it is time for our supreme court to reconsider this language disfavoring joint custody—along with any requirement that our family courts find “exceptional circumstances” to justify joint custody awards—to alleviate any concerns our family courts may have regarding the circumstances in which they may award “joint or divided custody” pursuant to the legislature’s grant of jurisdiction in § 63-3-530(A)(42).

In Judge McDonald’s opinion, South Carolina law requiring the family court to find exceptional circumstances to award joint custody at odds with S.C. Code Ann. 63-5-30, which provides the following:

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.

Does Judge McDonald’s concurring opinion in Tomlinson indicate a change is coming to South Carolina’s custody laws? We will have to wait and see.

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