Harrison v. Ballington, 2797.
| Decision Date | 23 February 1998 |
| Docket Number | No. 2797.,2797. |
| Citation | 498 S.E.2d 680,330 S.C. 298 |
| Court | South Carolina Court of Appeals |
| Parties | Forest Todd HARRISON, Sr., Appellant, v. Peggy D. BALLINGTON and Lewis B. Ballington, Respondents. In Re Forest Todd HARRISON, Jr., a minor under the age of fourteen. |
Walter H. Smith, Columbia, for appellant.
G. Robin Alley, Isaacs, Alley & Harvey, Columbia, for respondents.
Patrick John Frawley, of Nicholson, Davis, Frawley, Anderson & Ayer, Lexington, Guardian ad Litem.
This is a child custody dispute between appellant, Forest Todd Harrison, Sr. (Todd), and appellant's mother and stepfather, Peggy and Lewis Ballington (the Ballingtons), over appellant's son, Forest. The trial judge ordered that custody of Forest remain with the Ballingtons. Todd appeals. We reverse.
Forest was born on August 27, 1987 to the marriage of Todd Harrison and Kathy Hudson Harrison. Todd and Kathy separated on January 18, 1989 and were divorced by decree of the family court dated March 27, 1990. Pursuant to the March 1990 decree, Kathy was awarded custody of the minor child, subject to a fixed schedule of visitation in favor of the father. On August 11, 1990, Kathy died suddenly after a brief illness. Upon the mother's death, the Ballingtons took possession of the child. Shortly thereafter, the Ballingtons instituted an action against Todd seeking custody of the child. Subsequently, the parties reached an agreement which was adopted by the family court by order dated February 22, 1991. Pursuant to that agreement, the Ballingtons were granted custody of the child and Todd was awarded limited visitation. This visitation was to increase over the months following the issuance of the order. The order further provided the father was to make weekly child support payments and to enroll in safe parenting classes. It also required all the parties to submit to psychological evaluation in order to determine the effect of visitation on the child. In February 1992, Todd's visitation was reduced for failure to comply with the court ordered psychological evaluation. Subsequently, however, Todd was awarded increased visitation, including overnight stays.
The present action was instituted by Todd on August 6, 1992, seeking, among other things, an order granting him custody of the child, based in part on changed circumstances. He also asserted in his complaint that he was entitled to an order granting him custody because he is the child's natural father and is a fit parent. The Ballingtons answered and counterclaimed, generally denying the allegations contained in the father's complaint and seeking attorney fees and costs and an increase in child support.
By order dated May 20, 1996, the family court judge determined that custody should remain with the Ballingtons. He found the case should be analyzed as a modification based on changed circumstances. He held that the four part criteria enunciated in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) was inapplicable to the case at hand because Moore and its progeny applied only to situations where the biological parent temporarily relinquished custody. He found that by voluntarily entering into an agreement relinquishing custody of his son, Todd waived his priority status accorded by Moore. The final order made no mention of the agreement being of a temporary nature. He thus found the proper analysis of the case was under a change of circumstances. While the trial judge determined Todd had proven a substantial change in circumstances, the changes were not substantial enough to warrant a change of custody from the Ballingtons. The father appeals.
Todd contends the trial judge erred in determining this action should be treated as a change of circumstances case instead of a case subject to the criteria set forth in Moore, based on the fact that he is a biological parent seeking to recover custody of his son from third parties. We agree.
We first note that the final order awarding custody to the Ballingtons makes no mention as to whether the custody award is intended to be temporary. It simply approves an agreement between the parties which awarded "full custody, care and control of the minor child" to the Ballingtons, with specific visitation reserved for Todd. Nowhere does the order provide that Todd was permanently relinquishing custody of his son or that he waived his priority status as a biological parent to reclaim custody from a third party. Further, a careful reading of the parties' initial agreement which led to the order of custody, reveals that the parties contemplated the eventual return of the child to the father. In particular, the agreement states:
I, Forest Todd Harrison, Sr., as the natural father of Forest Todd Harrison, Jr. and my parents, Lewis and Peggy Ballington, agree that it would be in the best interest of Forest Todd Harrison Jr. to be in the custody of Lewis and Peggy Ballington until at such time as Forest Todd Harrison, Sr. is able to support and provide adequate love and care for Forest Todd Harrison, Jr. and that upon appealing to the Courts and according to the courts ruling. It is our fondest wishes [sic] that father and child be reunited.
Although this particular agreement was not incorporated into the final order, it is a clear indication that Todd did not intend to permanently relinquish custody of his son. See Janasik v. Fairway Oaks Villas Horizontal Property Regime, 307 S.C. 339, 415 S.E.2d 384 (1992)
(). Accordingly, we find the trial judge erred in finding Todd waived his priority status as accorded by Moore. Thus, this case must be analyzed pursuant to Moore and its progeny.
The best interest of the child is always the primary and controlling consideration of the court in all child custody matters. Moore, 300 S.C. 75, 386 S.E.2d 456; Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973). However, where the issue of custody arises with regard to third persons, there is a rebuttable presumption which favors placing custody with the biological parent. Moore, 300 S.C. 75, 386 S.E.2d 456; Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781 (1985). In child custody matters, the public policy of this state is to reunite parents and children. Sanders v. Emery, 317 S.C. 230, 452 S.E.2d 636 (Ct.App.1994). Since the paramount consideration is the welfare of the child, the dilemma of the courts is to assure that parents who temporarily relinquish custody for the child's best interest can regain custody when conditions become more favorable. The court should consider the following criteria in making custody determinations when a natural parent seeks to reclaim custody of his child:
To continue reading
Request your trial
-
Hooper v. Rockwell
...Doran, 129 S.C.26, 31, 123 S.E. 501, 503 (1924); accord Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996); Harrison v. Ballington, 330 S.C. 298, 498 S.E.2d 680 (Ct.App.1998). Similarly, the Legislature in recent years has placed an increasing emphasis on the best interests of the child ......
-
Urban v. Kerscher
...addressed the temporary nature of a biological parent's relinquishment of custody to a third party. See Harrison v. Ballington , 330 S.C. 298, 302, 498 S.E.2d 680, 682 (Ct. App. 1998). In Harrison , a father and mother divorced, and the mother had sole custody of their son. Id. at 301, 498 ......
-
Lawson v. Smith, Appellate Case No. 2016-000267
...temporary and she did not "waive [her] priority status as a biological parent to reclaim custody." See Harrison v. Ballington, 330 S.C. 298, 302, 498 S.E.2d 680, 682 (Ct. App. 1998) (finding the Moore factors applied when the father's relinquishment was not permanent and eventual return of ......
-
Wilson v. Builders Transport, Inc.
...... J. Mark Hayes, II, of Harrison & Hayes, Spartanburg, for respondents. HOWELL, Chief Judge:. Randy ......