Urban v. Kerscher

• Decision Date: 23 May 2018
• Docket Number: Opinion No. 5560,Appellate Case No. 2016-001213
• Court: South Carolina Court of Appeals
• Parties: Nataschja Tonya URBAN, Appellant, v. Leo W. KERSCHER, Mary Jean Crew, and Jeffrey Brain Poston, Respondents.

423 S.C. 615

817 S.E.2d 130

Nataschja Tonya URBAN, Appellant,

v.Leo W. KERSCHER, Mary Jean Crew, and Jeffrey Brain Poston, Respondents.

Appellate Case No. 2016-001213

Opinion No. 5560

Court of Appeals of South Carolina.

Heard April 11, 2018

Filed May 23, 2018

Leon Edward Green, of Leon E. Green, PC, of Aiken, for Appellant.

James B. Jackson, Jr., of Nester & Jackson, PA, of Orangeburg, for Respondents.

GEATHERS, J.:

This is a child custody dispute between Nataschja Urban and family friends, Leo Kerscher and Mary Crew, over Urban's minor daughter (Child). Urban appeals the ruling of the family court granting custody of Child to Kerscher and Crew. Urban argues the factors outlined in Moore v. Moore , 300 S.C. 75, 386 S.E.2d 456 (1989) govern and militate the return of Child to her custody. Alternatively, Urban argues she has met the higher burden of demonstrating a substantial change in circumstances warranting the return of Child to her custody.¹ We reverse and remand.

FACTS/PROCEDURAL HISTORY

Urban and Jeffrey Poston were in a romantic relationship resulting in the birth of Child in October 2009. Urban and Poston never married, and until May 2014, Urban had sole custody of Child. On May 16, 2014, Urban left Child in the care of family friends, Kerscher and Crew, in Orangeburg, South Carolina, while Urban left to pursue and secure a permanent home and employment in Pennsylvania. At the time, Urban intended for Child to stay with Kerscher and Crew only for the summer of 2014. Urban's Pennsylvania employment fell through after a week, and she relocated to Mississippi, where she worked for a few months at a convenience store.

Prior to leaving Child with Kerscher and Crew, Urban signed a letter that purported to allow them to care for Child's medical and educational needs in Urban's absence. However, Crew claimed the letter was ineffectual because her last name was incorrectly stated and the letter could not be notarized. As a result, on June 11, 2014, while Urban was still in Mississippi, Kerscher and Crew filed a complaint seeking permanent custody of Child. Specifically, Kersher and Crew requested "temporary and permanent custody of [Child], which they need[ed] for purposes of educating [Child] and providing for her medical needs." Urban was served with the complaint and filed an answer agreeing to let Kerscher and Crew have custody of Child.² On September 5, 2014, the family court held a final hearing on the complaint for custody and issued its final order on September 16, 2014, granting Kerscher and Crew permanent custody. Urban did not attend the final hearing, and despite the court's reference to Urban's Mississippi residence, Urban had returned to South Carolina in August.

Two months later, on November 14, 2014, Urban filed a complaint seeking the return of Child to her custody. In April 2015, Urban filed a motion for temporary relief, seeking custody of Child during litigation. The family court held a hearing on the motion in June 2015 and issued its order maintaining Child's custody with Kerscher and Crew but granting Urban visitation.

The final hearing was held in March 2016, and the court issued its order the following month. The court declined to return custody of Child to Urban but continued to allow Urban visitation. The court also required the child support being paid by Child's father to be sent to Kerscher and Crew. This appeal followed.

ISSUES ON APPEAL

1. Did the family court err in granting custody to third parties over a natural parent?

2. Did the family court err in finding there was not a substantial change in circumstances warranting a change in custody?

STANDARD OF REVIEW

"[T]he proper standard of review in family court matters is de novo ...."

Stoney v. Stoney , Op. No. 27758, 422 S.C. 593, 813 S.E.2d 486, 2018 WL 2145094 (S.C. Sup. Ct. filed April 18, 2018) (Shearouse Adv. Sh. No. 16 at 11); Lewis v. Lewis , 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In a de novo review, the appellate court is free to make its own findings of fact but must remember the family court was in a better position to make credibility determinations. Lewis , 392 S.C. at 385, 709 S.E.2d at 651–52. "Consistent with this de novo review, the appellant retains the burden to show that the family court's findings are not supported by a preponderance of the evidence; otherwise, the findings will be affirmed." Ashburn v. Rogers , 420 S.C. 411, 416, 803 S.E.2d 469, 471 (Ct. App. 2017). On the other hand, evidentiary and procedural rulings of the family court are reviewed for an abuse of discretion. Stoney , Op. No. 27758 (Shearouse Adv. Sh. No. 16 at 10, n.2).

LAW/ANALYSIS

The family court denied Urban's petition for custody by applying two competing analyses—finding Urban had not met the factors established in Moore v. Moore , 300 S.C. 75, 386 S.E.2d 456 (1989) or the higher burden of demonstrating a substantial change in circumstances. Urban argues the family court should have applied only the Moore factors but also contends she has met the burden of proof under either theory. We find the Moore factors govern exclusively.

I. Appropriate Standard

Our supreme court in Moore outlined certain criteria for a court to apply when a natural parent seeks to reclaim custody of his or her child after having temporarily relinquished custody to a third party. 300 S.C. at 79–80, 386 S.E.2d at 458. Beginning with "a rebuttable presumption that it is in the best interest of any child to be in the custody of its biological parent," the court outlined the following four factors:

(1) "[t]he parent must prove that he [or she] is a fit parent, able to properly care for the child and provide a good home";

(2) "[t]he amount of contact, in the form of visits, financial support[,] or both, [that] the parent had with the child while [he or she] was in the care of a third party";

(3) "[t]he circumstances under which temporary relinquishment occurred"; and

(4) "[t]he degree of attachment between the child and the temporary custodian."

Id. The question is not who has the most suitable home at the time of the hearing but whether circumstances "overcome the presumption that a return of custody to the biological parent is in the best interest of the child." Sanders v. Emery , 317 S.C. 230, 234, 452 S.E.2d 636, 638–39 (Ct. App. 1994).

The Moore court found these factors best addressed the dilemma between safeguarding the welfare of a child and ensuring "parents who temporarily relinquish custody for the child's best interest can regain custody when conditions become more favorable." 300 S.C. at 79, 386 S.E.2d at 458. The court reasoned a parent should be able to regain custody by showing the condition requiring relinquishment has been resolved. Id. at 81, 386 S.E.2d at 459. The court further noted a third party should not be awarded custody of a child over a biological parent through "adverse possession." Id.

Because Moore is limited to situations involving the temporary relinquishment of custody to a third party, it stands to reason that Moore would 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 children to the children's father, not a third party). Here, it is undisputed Urban voluntarily transferred custody of Child to third parties, Kerscher and Crew. The question remains, however, whether Urban's relinquishment was temporary or permanent.

On one occasion, this court has 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 S.E.2d at 681. Six months later, the mother passed away, and the child's grandparents took physical custody of the child. Id. , 498 S.E.2d at 681–82. The grandparents filed an action seeking custody of the child, and the parties reached an agreement, which the family court adopted, granting the grandparents custody and allowing the father visitation. Id. , 498 S.E.2d at 682. A year and a half later, the father filed for legal custody of the child based on changed circumstances. Id. This court determined the family court erred in applying a changed-circumstances analysis because the family court order did not specify the father's relinquishment was permanent or that the father "waived his priority status as a biological parent to reclaim custody"; and, the agreement upon which the order was based indicated the parties had contemplated the eventual return of the child to the father. Id. at 302, 498 S.E.2d at 682–83. Therefore, the Moore factors applied. Id. at 303, 498 S.E.2d at 683.

We interpret Harrison as allowing for an examination of the circumstances surrounding relinquishment to determine the nature of the relinquishment, with particular focus on the biological parent's intent. Id. at 302–03, 498 S.E.2d at 682–83 (examining the initial custody agreement, which was not incorporated into the order, and determining the father never intended to permanently relinquish custody or waive "his priority status as a biological parent to reclaim custody"). We find this reading of Harrison best comports with our state's public policy of reuniting children with their families in timely manner and this court's duty to zealously safeguard the rights of minors. See S.C. Code Ann. § 63-1-20(D) (2009) ("It is the policy of this [s]tate to reunite the child with his family in a timely manner, whether or not the child had been placed in the care of the [s]tate voluntarily."); Harrison , 330 S.C. at 303, 498 S.E.2d at 683 (stating the public policy of South Carolina, in child custody disputes, is to reunite children with their parents); see also S.C. Dep't of Soc. Servs. v. Roe , 371 S.C....