South Carolina’s child custody law would see its biggest overhaul in decades under a bill that has sailed through the S.C. House.
The bill (H. 4614), sponsored by Rep. Mike Pitts, R-Laurens, spells out definitions of joint and sole custody for the first time in the S.C. Code of Laws – something which, according to family law attorneys, has varied depending on the family court judge hearing a case. The proposal also lists 15 factors that judges can consider in awarding custody.
There were 3,372 child custody and visitation cases filed statewide last fiscal year, which ended June 30, plus another 987 cases in which modification of child custody or visitation was sought, according to figures from the S.C. Judicial Department.
Pitts’ bill, which was introduced on Jan. 17, unanimously cleared the House last week and is now in the Senate Judiciary Committee.
Meanwhile, S.C. Supreme Court Chief Justice Jean Toal is expected to ask lawmakers Wednesday in her annual state-of-the-judiciary speech for six more family court judges and three additional circuit court judges to deal with increasing caseloads.
Currently, there are 52 family court and 46 circuit judges in the state. A bill (H. 4699) introduced last week by Rep. Bruce Bannister, R-Greenville and an attorney, would add six family court judges and six circuit court judges to the state bench.
Gov. Nikki Haley has called for the addition of three family court judges. Family court judges are paid $126,883 annually; the yearly salary for circuit court judges is $130,312.
In a recent interview with The Nerve, Pitts, a retired police officer, said his bill is “an attempt for both parties who really want to be involved with their child to be equally involved with their child.”
“If you’re going to be equally accessible to the child, you’re going to be equally responsible for the child,” he said.
Under the bill, joint custody means that “both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.”
It doesn’t mean, according to the bill, that a child “must spend an equal amount of time with each parent.”
A similar bill (H. 4095) introduced last year by Pitts defined joint physical custody as “equal time-sharing,” but Pitts told The Nerve that the measure bogged down in the House because other lawmakers felt that a proposed presumption of joint physical custody in joint custody cases went too far.
Pitts said a problem with current custody cases is that non-custodial parents – often fathers – typically pay a large percentage of child support while being allowed to spend relatively little time with their children and having little input into major decisions involving the children.
He also pointed out that other non-custodial parents – often fathers – will push for joint custody as a way of shirking their financial responsibilities to their children.
Pitts said he drafted his latest proposal after spending months getting input from family law attorneys, judges and others. Pitts, who is chairman of a House Ways and Means subcommittee that oversees the Judicial Department’s budget, noted he met with Toal on the bill.
The bill was approved by the House Judiciary Committee about a week after it was introduced and received unanimous votes on the second and third readings in the House last week. It has been referred to the Senate Judiciary Committee, chaired by Senate President Pro Tempore Glenn McConnell, R-Charleston and an attorney.
Besides defining joint and sole custody, the bill also would require for the first time that parents submit a proposed “parenting plan” to the court at the start of a custody case. The plan would reflect “parental preferences, the allocation of parenting time to be spent with each parent, and major decisions” involving the child, according to the bill.
Pitts said he believes that provision would help “take some of the adversarial atmosphere out of child custody proceedings.”
Another important part the bill would set up a system in which an arbitrator would decide “significant” disputes that arise after a final custody order issued by a family court judge.
Longtime Columbia family law attorney John McDougall says he is concerned about the arbitration requirement, which stipulates that the parties share equally in the cost of the arbitrator, who typically is another attorney or a retired judge.
“The problem with this bill is, what happens to people who can’t afford to pay an arbitrator?” McDougall said. “Are we saying that arbitration is only for wealthy people?”
McDougall said although Pitts’ proposal is “not a bad bill” overall, he believes it will “really overburden” family court judges during initial hearings.
That’s when judges, because of huge caseloads, typically take only about 15 minutes to decide custody, support, alimony and other issues, McDougall said. Detailed parenting plans would only add to the large amount of paperwork judges already have to decipher, he said.
The parenting plans also would likely increase the cost of a divorce proceeding, McDougall said. Attorneys typically put in five to 10 hours preparing for the initial hearing, which can cost the litigant $1,000 to $2,500 on the low end, he said.
Jay Elliott of Columbia, another veteran family law attorney, told The Nerve last week that he believes defining joint custody in the law is a good thing, noting that currently it “means different things to different people” in court proceedings.
Joint custody, however, usually is not granted in South Carolina because the parents typically can’t get along, Elliott said.
Elliott said he also supports a provision in the bill that would allow family court judges to consider, among other factors, the wishes of the child in determining custody. Current state law already requires that judges consider a child’s preference.
He said he is a “fierce” critic of the current guardian-ad-litem system in custody proceedings, contending that persons appointed by the court to represent the child’s interests often “don’t even consider what the child wants.”
But Elliott questioned whether a mutually agreeable parenting plan as cited in Pitts’ bill would be practical in most cases, noting, “If they didn’t get along when they were married, how are they going to get along when they’re divorced?”
Columbia family law attorney Monet Pincus told The Nerve last week that because the bill requires judges to consider joint custody in contested cases, it could have the unintended effect of encouraging the parents to go to trial instead of trying to settle their custody disputes in advance because “there would be nothing to lose.”
Because most final custody orders designate one parent as having sole custody, that tends to encourage both parents to settle their differences, she said.
Another main problem Pincus said she has with the bill is that the best-interests-of-the-child standard used in determining custody is not as clearly defined when compared with court rulings on the issue.
“I think it’s really hard to legislate what the best interests of the child are,” Pincus said. “It varies from case to case and parent to parent.”
Pitts said the state’s child custody law hasn’t been changed significantly since the 1970s.
“It wouldn’t be a complete 180 from how our family court system works, but it would definitely take it in a different direction,” he said about his bill.
Reach Brundrett at (803) 254-4411 or rick@thenerve.org.