Cook v. Cobb, 20719

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: LITTLEJOHN; LEWIS
• Citation: 245 S.E.2d 612,271 S.C. 136
• Parties: Arline Sloan COOK and J. Glenn Cook, Jr., Respondents, v. Roger L. COBB and Elizabeth Grier Cobb, (a minor under the age of 14 years) Respondents, and Janet Nichols Cobb, a/k/a Janet Nichols & Janet Nichols Pfeifer, Appellant.
• Docket Number: No. 20719,20719
• Decision Date: 22 June 1978

Page 612

245 S.E.2d 612 271 S.C. 136 Arline Sloan COOK and J. Glenn Cook, Jr., Respondents,
v.
Roger L. COBB and Elizabeth Grier Cobb, (a minor under the
age of 14 years) Respondents,
and
Janet Nichols Cobb, a/k/a Janet Nichols & Janet Nichols
Pfeifer, Appellant. No. 20719. Supreme Court of South Carolina. June 22, 1978.

Page 613

[271 S.C. 138] Robert F. Fuller, of Rogers, McDonald, McKenzie, Fuller & Rubin, Columbia, for appellant.

Edmund H. Monteith, of Monteith, Monteith & Gottlieb, Columbia, for respondents Arline Sloan Cook, et al.

Robert L. Green, Columbia, for respondent Roger L. Cobb.

Theresa H. Potts, Columbia, Guardian Ad Litem for the minor respondent Elizabeth Grier Cobb.

LITTLEJOHN, Justice.

This appeal involves a dispute between the paternal grandparents and the mother over custody of an eight-year-old child. The Family Court awarded custody to the grandparents, from which order the mother has appealed. We affirm.

Page 614

This action was instituted by Arline Sloan Cook, the paternal grandmother, and J. Glenn Cook, Jr., the paternal step-grandfather, referred to collectively as the grandparents, for the purpose of obtaining custody of the child, and permission to adopt her. The father, Roger L. Cobb, joined in the grandparents' prayer that they be granted custody of the child. The mother, Janet Nichols Cobb (now Pfeifer) answered, praying that the grandparents' petition be denied, and that the court confirm the award of custody embodied [271 S.C. 139] in her divorce decree, which vested custody in her in May, 1976.

Following the commencement of this action in August of 1976, a consent order was issued establishing temporary physical possession of the child, pendente lite, with the grandparents. By order of December 14, 1976, the Family Court assumed temporary custody of the child, and placed the child in the home of the grandparents, granted the grandparents certain authority in loco parentis to care for the child, and provided for certain visitation rights. After an extensive hearing on the merits, the Family Court, by its order dated August 4, 1977, denied the grandparents' request to adopt the child, but awarded them permanent custody of the child subject to visitation privileges in the mother. It is the custody facet of this order that is before us on appeal.

The mother and father were married August 16, 1967. Of that marriage was born the child, Elizabeth Grier Cobb, on October 14, 1969. As a result of marital difficulties, the mother and father commenced living separate and apart prior to October 9, 1973. On that date, they entered into an agreement governing the terms of their separation, which included a provision allowing the mother exclusive custody of the minor child. Following the separation, the mother moved to New York City to pursue a theatrical career, and made arrangements with the grandparents to leave the child with them. From October, 1973, until the present time, the child has been in the principal custodial possession of the grandparents.

On May 12, 1976, the mother was awarded a final decree of divorce from the father. The agreement entered into in 1973 between the mother and the father, giving the mother exclusive custody of the child, was incorporated into the divorce decree by reference.

Subsequent to her divorce, the mother advised the father and grandparents of her intention to carry the child to her [271 S.C. 140] home in New York City and to resume principal custodial possession. This action ensued.

On August 31, 1976, the mother married Richard Pfeifer of New York, and she lives now with her new husband in the state of New Jersey. It is inferable that she entered into this marriage, at least partially, in order to enhance the likelihood of gaining and/or keeping custody of the child.

The principal question before us is whether the lower court erred in determining that it was in the child's best interest to remain with the grandparents. In this appeal the burden of showing error is upon the mother. She has failed to carry this burden.

The welfare of the child and what is in his/her best interest is the primary, paramount and controlling consideration of the court in all child custody controversies. Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89 (1943). The position advanced by the mother is that the "best interest of the child" principle is subject to the qualification that a parent with a suitable home environment has a right to the custody of her child absent a showing of abandonment, unfitness, or extraordinary circumstances. While we recognize the preference given to parents as against others in child custody disputes, the rights of even a fit parent are merely presumptive and must yield when the best interests of the child would not be subserved. We held in Koon v. Koon, supra, quoted approvingly in Driggers v. Hayes, 264 S.C. 69, 212 S.E.2d 579 (1975), that:

"The rule that obtains in this and practically all jurisdictions at the present day

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is, that the well-being of the child is to be regarded more than the technical legal rights of the parties, so that, following this rule, it is generally held that the child will not be delivered to the custody of either parent where it is not to its best interest. The right of the parent is [271 S.C. 141] not absolute and unconditional. The primary consideration for the guidance of the Court is what is best for the child itself. This is declared not only in specific terms by our statute . . . but it has been so...