Baker v. Wolfe, 2919.
| Court | Court of Appeals of South Carolina |
| Writing for the Court | HOWELL, Chief |
| Citation | 333 S.C. 605,510 S.E.2d 726 |
| Parties | Jenny BAKER and Jerry Baker, Appellants, v. Scott G. WOLFE, Barbara Miller and Charles Miller, Respondents. |
| Docket Number | No. 2919.,2919. |
| Decision Date | 21 December 1998 |
333 S.C. 605
510 S.E.2d 726
v.
Scott G. WOLFE, Barbara Miller and Charles Miller, Respondents
No. 2919.
Court of Appeals of South Carolina.
Heard November 5, 1998.
Decided December 21, 1998.
Donald D. Aaron, of Aaron & Aaron, of Columbia, for respondents.
Guardian ad Litem: Warren A. Kohn, of Columbia.
HOWELL, Chief Judge:
In this child custody dispute, Jenny and Jerry Baker (the Bakers, or the Mother and the Stepfather) appeal from an order of the family court awarding custody of the Mother's two minor children to their paternal grandparents, Barbara and Charles Miller (the Grandparents). We affirm.
I.
The Mother married Scott Wolfe (the Father) in 1989; they divorced in 1991. In the 1991 divorce decree, the family court granted custody of the parties' two minor children to the Mother. In May 1993, the children began living with the Father, who was living with the Grandparents. According to
In June 1994, the Father brought an action against the Mother seeking joint custody of the children. The Mother answered and joined in the Father's request. By order dated August 10, 1994, the family court awarded the Father joint custody, and gave primary physical custody of the children to the Father "so long as [the Father] resides with his mother, Barbara Miller."
In November 1995, the Mother commenced this action, seeking to have the Father held in contempt for failing to comply with the court-ordered visitation schedule and also seeking sole custody of the children. The Father counterclaimed for sole custody of the children. At the time this action was commenced, the children were still living with the Father in the Grandparents' home.
The Grandparents and the Stepfather were made parties to the action. The order adding the Grandparents to the action provided that "any and all pleadings previously filed for relief or filed subsequently hereto ... by the [Father], shall be treated as if it were a joint request by the [Father] and [the Grandparents]."
While all parties were present on the first day of the hearing, the Mother and Stepfather were not present on the second day. Their attorney informed the court that an emergency prevented his clients from attending, but that he was authorized to proceed in their absence.
By order dated March 12, 1997, the family court determined that both the Mother and Father were unfit.1 The court determined that Barbara Miller (the Grandmother) "has provided by far more of the parenting functions on a regular basis to the children than either [the Mother] or [the Father]." The court, therefore, awarded the Grandmother sole custody of the children and established a visitation schedule for the Mother.
By order dated April 4, 1997, the family court amended its custody decree to restrict the Mother's visitation with the children to two hours per week at a restaurant under the supervision of the Grandmother or her designee.
II.
On appeal, the Bakers first argue that the family court erred in awarding custody of the children to the Grandmother. The Bakers contend the evidence does not support the family court's determination that the Mother is unfit, and that the family court failed to consider all of the factors applicable to custody disputes between natural parents and third parties. We find no error.
The welfare and best interests of the child are paramount in all custody disputes. However, the law recognizes a rebuttable presumption that it is in the best interest of any child to be in the custody of its biological parent. Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989); Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781 (1985).
In Moore, our Supreme Court set forth the following factors to be considered in cases where a natural parent seeks to reclaim custody from a third party: (1) the parent's fitness and ability to properly care for and provide a good home for the child; (2) the amount of contact, in the form of visitation, financial support, or both, the parent had with the child while the child was in the care of a third party; (3) the circumstances
This case began as a custody dispute between parents who had joint custody of the children. There was no court order or agreement between the parents relinquishing custody to the Grandmother. Although the Mother voluntarily relinquished physical custody of the children in 1993, she relinquished custody to the Father, not a third party. Given that the Father resided with the Grandparents, the Mother may well have assumed that the Grandmother would be the primary caretaker of the children. Nonetheless, her relinquishment of the children to the Father does not seem to be the same type of relinquishment contemplated in Moore. Accordingly, given the unique factual circumstances of this case, we conclude that Moore is not controlling, although its factors...
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Tracie F. v. Francisco D., 15–CA–224.
...in the best interest of the child to be with its biological parent. Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) ; Baker v. Wolfe, 333 S.C. 605, 510 S.E.2d 726 (1998). Thereafter, the custodial nonparent bears a substantial burden of proving that the child's best interest lies with th......
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Tracie F. v. Francisco D., 15-CA-224
...is in the best interest of the child to be with its biological parent. Moore v. Moore, 300 S.C. 75; 386 S.E.2d 456(1989); Baker v. Wolfe, 333 S.C. 605, 510 S.E.2d 726 (1998). Thereafter, the custodial nonparent bears a substantial burden of proving that the child's best interest lies with t......
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Urban v. Kerscher, Appellate Case No. 2016-001213
...not apply when custody of a child is transferred permanently, involuntarily, or to the other natural parent. See, e.g. , Baker v. Wolfe , 333 S.C. 605, 610, 510 S.E.2d 726, 729 (Ct. App. 1998) (finding the Moore factors did not apply because a mother voluntarily relinquished custody of her ......
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CMI Contracting, Inc. v. Little River Lodging, LLC, 2004-UP-421
...time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”); Baker v. Wolfe, 333 S.C. 605, 614, 510 S.E.2d 726, 731 (Ct. App. 1998) (noting where record did not indicate appellant objected to the reasonableness of the hours or fees,......
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Tracie F. v. Francisco D., 15–CA–224.
...in the best interest of the child to be with its biological parent. Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) ; Baker v. Wolfe, 333 S.C. 605, 510 S.E.2d 726 (1998). Thereafter, the custodial nonparent bears a substantial burden of proving that the child's best interest lies with th......
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Tracie F. v. Francisco D., 15-CA-224
...is in the best interest of the child to be with its biological parent. Moore v. Moore, 300 S.C. 75; 386 S.E.2d 456(1989); Baker v. Wolfe, 333 S.C. 605, 510 S.E.2d 726 (1998). Thereafter, the custodial nonparent bears a substantial burden of proving that the child's best interest lies with t......
-
Urban v. Kerscher, Appellate Case No. 2016-001213
...not apply when custody of a child is transferred permanently, involuntarily, or to the other natural parent. See, e.g. , Baker v. Wolfe , 333 S.C. 605, 610, 510 S.E.2d 726, 729 (Ct. App. 1998) (finding the Moore factors did not apply because a mother voluntarily relinquished custody of her ......
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CMI Contracting, Inc. v. Little River Lodging, LLC, 2004-UP-421
...time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”); Baker v. Wolfe, 333 S.C. 605, 614, 510 S.E.2d 726, 731 (Ct. App. 1998) (noting where record did not indicate appellant objected to the reasonableness of the hours or fees,......