Purser v. Owens

KONDUROS, J.

Angela Owens (Mother) appeals the family court’s award of custody to Paul Purser (Father). We affirm in part, reverse in part, and remand.

FACTS

Mother and Father are the parents of an autistic child (Child) who is now eleven years old. Mother and Father’s relationship has never been stable. They never married and never lived together on a regular basis.1 They dated on and off for about two years and finally stopped seeing each other when Mother became pregnant with Child. Father raised the possibility of whether to have the Child or terminate the pregnancy. Mother elected to have Child, and he was born on *533October 1, 1999. Father had not been actively involved in the pregnancy, but attended the birth and, afterwards, moved to Lancaster, South Carolina, where Mother lived, “to try to make it work.” A few months later, Father moved permanently to Charlotte, North Carolina. Father claims that Mother gave him a choice of being with her and seeing Child or not seeing Child at all. However, Father’s mother was allowed to see Child, and he arranged to see Child through her occasionally. He voluntarily paid child support in the amount of $75 to $150 per week from the time of Child’s birth.

In May 2004, Child was diagnosed with autism by Mae Baird, a regional consultant with the Department of Developmental Services autism division. Father was initially reluctant to accept Child’s autism diagnosis. At the custody hearing, both Dr. Carmena Cruz, Child’s pediatrician, and Baird testified denial is a normal reaction for some parents. Mother left her job as an internet manager at a car dealership in 2004, after the initial diagnosis, to devote her time to caring for Child. Dr. Cruz testified that caring for an autistic child can be overwhelming for parents, especially a single parent. Dr. Cruz explained that because change is difficult for an autistic child, a stable, consistent environment is the most important thing to provide. Similarly, Baird testified that “autistic individuals have a lot of problems with routine changes,” and change “can produce a lot of problem behaviors because [they] don’t understand perhaps what is happening around them or what is expected of them.”

After filing for custody in September 2005, Father remarried and attempted to become regularly involved in Child’s life. Until then, Father’s visitation with Child had been irregular. However, by the time of the hearing, Father attended Child’s school meetings, visited his doctors, and enrolled him in a therapy program. He also generally had visitation with Child every other weekend.

In 2006, when Mother was thirty-five years old, she briefly dated a nineteen-year-old man (Boyfriend) with a prior marijuana conviction. Boyfriend spent the night in Mother’s home, arriving after Child was asleep and leaving before he awoke.2 According to Mother, Boyfriend was around Child *534“maybe two or three weekends.” Mother became pregnant with Boyfriend’s child and had an abortion. She testified she chose to abort the pregnancy because this child had a fifty-percent chance of being autistic, she felt a second child would take away her focus from Child, and Boyfriend was not someone she wanted involved in her and Child’s lives anymore.

Mother still lives in Lancaster and has been Child’s primary caretaker for his entire life. She is unmarried, and Child is her only child. She works from her home as a real estate marketer. While Child lived with Mother, he received speech therapy, occupational therapy, and Applied Behavior Analysis (ABA) therapy in school.3 He received some additional therapy after school as well.

Mother argued Father filed this custody case because she sought a child support order. She testified Father served her with custody papers within days of being contacted by the Department of Social Services about child support payments. Father denied this and said he filed because he did not “believe the medical avenues are being followed up diligently like they should be for Child.... [T]here’s an element of danger in the environment that’s around [him].”

On March 18, 2008, the family court awarded custody to Father. The family court found Mother was Child’s primary caretaker and both parties presented as fit parents with appropriate households. However, the family court expressed concerns about Mother’s combativeness with school officials, her lack of access to more therapy for Child, and her lack of judgment. The family court stated:

*535Other things I’m concerned about is the pregnancy with a 19 year old and abortion. That was an irresponsible decision; two irresponsible decisions. First being involved with a 19 year old when you are 36 or 35. That’s irresponsible. And then having an abortion. That’s irresponsible. I am concerned about the environment.

The family court concluded Father was the parent best equipped “to bring about the most adjusted and mature ... child.” Visitation was structured so that Mother would have Child every other weekend as well as every other Tuesday after school and every Thursday after school. This appeal followed.

STANDARD OF REVIEW

We review the family court’s decision de novo. Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011).

LAW/ANALYSIS

I. Totality of Circumstances Versus Change of Circumstances

Mother contends the family court erred in utilizing a totality of the circumstances standard in this case instead of requiring Father to demonstrate a change in circumstances. She maintains the custody of an illegitimate child in the natural mother, as provided for in section 63-17-20(B) of the South Carolina Code (2010) (formerly section 20-7-953(B)),4 coupled with Father’s failure to pursue custody of Child sooner, demonstrate an established custody agreement that should have been recognized by the family court. We disagree.

In Altman v. Griffith, 372 S.C. 388, 642 S.E.2d 619 (Ct.App. 2007), this court addressed Mother’s first point. In Altman, the mother argued section 20-7-953(B), gave her an advan*536tage over the father in the custody determination, which required him to demonstrate a change in circumstances to gain custody. Id. at 397, 642 S.E.2d at 624. The court stated:

In giving a father the right to petition the family court for custody, the statute makes no mention of a change of circumstances burden. This plain reading of the statute is in accord with the general legal principle that the imposition of a change of circumstances burden applies when a parent seeks to alter a prior custody order.

Id. (emphasis added).

While the statute does place custody of a child of unmarried parents with the mother, the statute simply clarifies the legal standing of the parties in the absence of a court-determined custody order should the matter of custody be called into question. Custody in the natural mother under this statute does not give her a legal advantage in a custody determination as it is well-settled that a mother and father stand in parity with one another as the custody analysis begins and in light of the abolition of the tender years’ doctrine. See Kisling v. Allison, 343 S.C. 674, 678, 541 S.E.2d 273, 275 (Ct.App.2001) (“In South Carolina, in custody matters, the father and mother are in parity as to entitlement to the custody of a child.”); see also S.C.Code Ann. § 63-15-10 (2010) (“The ‘Tender Years Doctrine’ in which there is a preference for awarding a mother custody of a child of tender years is abolished.”). The statute establishes custody so the illegitimate child’s societal needs can be met, such as enrolling in school, obtaining medical treatment, or being returned to the appropriate party should law enforcement or the child’s school or daycare be required to elect between proper custodians.

We recognize the facts in this case are in some respects distinguishable from those in Altman. Father in this case did not seek custody of Child soon after the parties separated but waited until Child was almost six years old, and the parties never lived together. However, we do not believe those differences dictate a different reading or application of the statute than in Altman.

Mother also argues Father’s inaction and reluctance to accept Child’s autism diagnosis evidenced his acquiescence to *537Mother’s having custody of Child. She contends Father’s conduct demonstrates the existence of an agreement between the parties regarding custody so that a change of circumstances burden should be imposed. We disagree.

The dissent is persuaded Mother’s and Father’s conduct evidences an agreement between them regarding custody of Child and under Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975), a change in circumstances approach is therefore appropriate. However, in Davenport, Mother and Father had a written agreement regarding custody at the time of their separation. Id. at 526, 220 S.E.2d at 229-30. In this case, at no time did the parties have an explicit agreement, court-approved or otherwise. Without some definite agreement, the family court is left to attempt to ascertain the point in time when the actions of the parties gave rise to a de facto custody agreement. Only then could a court determine if the circumstances in existence at the time of the agreement had changed. This simply requires too much guesswork and speculation.5

In sum, Altman indicates the initial determination of custody between unmarried parents is measured by the totality of the circumstances, and a change in circumstance is only required to be demonstrated since the issuance of a court order. This framework ensures the best interests of the child have been considered by a neutral court and provides a date in time from which the family court can measure any alleged change in circumstances. Consequently, we conclude the family court did not err in examining the totality of the circumstances in reaching its decision.

II. Award of Custody to Father

Mother argues the family court erred in considering her abortion when making its custody determination. We agree.

South Carolina law is clear that a parent’s personal, moral behavior, while a proper consideration in custody cases *538is “limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child.” Davenport, 265 S.C. at 527, 220 S.E.2d at 230. In this case, Mother’s abortion had no direct or indirect effect on Child and therefore was not relevant to the custody determination. Thus, the family court should not have considered Mother’s abortion in the custody analysis. Accordingly, we reverse the family court’s order awarding custody of Child to Father and remand for consideration of the issue excluding Mother’s abortion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

THOMAS, J., concurs. FEW, C.J., dissents.

. It appears the parties may have stayed together periodically, but Father always retained a separate residence.

. Boyfriend came to Mother’s house drunk one night and broke her car window because she danced with another man. Boyfriend subsequent*534ly broke the car window of a man with whom he had seen Mother having dinner.

. According to the Department of Disabilities and Special Needs, ABA therapy is the process of “systematically applying interventions to improve socially significant behaviors.... Socially significant behaviors include reading, social skills, communication, and adaptive living skills. Adaptive skills include gross and fine motor skills, eating and food preparation, toileting, personal self-care, and home and community orientation.” Pervasive Developmental Disorder Waiver/State Funded Program Manual for Case Managers and Early Intensive Behavioral Intervention Providers, available at http://ddsn.sc.gov/providers/ medicaidwaiverservices/pdd/.

. The newer version of the statute is identical to the former statute. Both provide that “[ujnless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.” § 63-17-20(B).

. Because we do not believe an agreement existed in this case, we decline to address whether a change of circumstances approach is proper when the parties have established a custody agreement but not a court order.