Finding it to be in the best interest of the child, the state Court of Appeals has affirmed a generally disfavored arrangement where the child has adjusted well to joint physical custody, rotating weekly between mother and father.

In its May 2 ruling in Clark v. Clark, the appeals court unanimously found that the passage of time and positive reports regarding the 8-year-old girl’s welfare and mental adjustment comprise exceptional circumstances that warrant the arrangement.

“While disfavored, no evidence has been presented to allow the family court or this court to rule differently,” Judge Aphrodite Konduros wrote.

She’s doing fine

Tyrus and Amika Clark married in 2006 and had a daughter in December 2009. According to court records, the marriage was on the rocks for a couple of years before Amika filed for divorce in March 2014. Tyrus had previously filed for divorce — twice. A week before Amika’s filing, the couple had a physical altercation at their home that led to Amika’s arrest for criminal domestic violence.

Police were reportedly called to the couple’s home 11 times between 2012 and 2014.

In her action, Amika sought divorce and sole custody of their daughter. Each spouse, in fact, sought sole custody of the child. Each also alleged physical abuse and sought a restraining order against the other.

After an expedited temporary hearing, the family court issued a temporary order providing the parties would have joint custody of the child and share parenting time on a week-to-week basis.

During a final hearing held May 19-21, 2015, the Clarks and the child’s teachers all testified that the girl was “doing well and was happy.” During the weeks that Tyrus had the child, Amika would visit her at preschool for 30 minutes each day. Tyrus also visited the child at school when Amika had custody. A child psychotherapist provided expert testimony that the girl was doing well and did not need therapy. The expert did not opine as to how a change in custody might affect the child.

The guardian ad litem testified that she did not have any concerns regarding the child’s health and well-being with either party, but believed the child was “drawing back a little bit.” She acknowledged, however, that the psychotherapist was an expert in the field and had not noticed the same behavior. The GAL expressed concern with the parents’ inability to communicate with each other and make decisions, but added that the child had done “remarkably well,” and described her as polite, articulate, and smart.

Agree to disagree

Tyrus does computer science work from his home and only travels for work when Amika has custody of their daughter. He testified that on the weeks he had his daughter, he encouraged her to call her mother and to tell her that she loved her. He added that a change in custody would hurt his daughter because it would break the routine that she had become accustomed to.

Amika testified that she typically worked an 8 a.m. to 5 p.m. schedule, though her employer is flexible, especially on Fridays before the child is scheduled to go with her father for the week.

Amika was not in favor of the week-to-week arrangement because she believed her daughter was used to her being the primary caregiver (Tyrus’ previous job required more travel than the one he had at the time of the hearing).

‘Exceptional circumstances’

In its final order, the family court ordered joint custody and week-to-week placement of the child, finding that the totality of the record indicated that exceptional circumstances warranted joint custody in the child’s best interests. During the summer, custody would be month-to-month.

Amika unsuccessfully motioned for reconsideration.

On appeal, the court reviewed the case de novo, noting that the “paramount and controlling factor in every custody dispute is the best interests of the children.” It noted that the totality of the circumstances, rather than any hard and fast rule, determines what those best interests are. It added that in South Carolina, no preference is given to the father or mother in regard to child custody.

Konduros wrote, quoting 2012’s Lewis v. Lewis, that while a family court has jurisdiction to order joint custody when it finds it to be in the child’s best interest, “joint or divided custody should only be awarded when there are exceptional circumstances.”

Absent those circumstances, the law regards joint custody as harmful and not in a child’s best interest, Konduros added.

In Spreeuw v. Barker, the appeals court in 2009 found that during a seven-year custody battle, many things changed in the lives of the two children at issue, but the one constant was the custodial arrangement, which the court was reluctant to change.

The court found similarly here, citing an arrangement that had seemed to work well for 3 ½ years — nearly half of the child’s life.

“The teachers, parents, GAL, and therapist all testified about how well Child was doing,” Konduros wrote. “Many witnesses commented on how happy and well-adjusted she was at the time of the final hearing. We find the passage of time and the good reports on Child’s welfare and mental adjustment to the situation comprise exceptional circumstances warranting joint custody.”

Attorneys for Amika Clark did not immediately respond to a request seeking comment.

Lynn Barrett of Barrett Mackenzie in Greenville represented Tyrus Clark. She said that although the parents in this case could not get along, the child was “doing well and thriving” with both parents in her life.

“Fortunately, my client was able to prove at trial that it was in the child’s best interests for the shared custody arrangement to continue,” Barrett wrote in an email.

Setting a standard?

Amanda Bruton of Sodoma Law’s Rock Hill office was not involved in the case, but reviewed the opinion at Lawyers Weekly’s request. She said that the joint physical custody awarded by courts is often disguised by allowing “one parent to have primary custody and the other parent to have visitation that exceeds every other weekend.”

True joint physical custody, she said, more often happens by agreement between the parties as courts are concerned about an arrangement that does not “inherently suggest stability.”

“[P]arents may live in different school districts, increased distance for extracurricular activities, different neighborhood friends and the like,” Bruton wrote in an email. “This case may set a good precedent for True Joint Physical Custody.”

Barrett said that she doesn’t know exactly how the ruling may affect cases moving forward.

“I cannot help but think that it will have an impact if for no other reason than we know it is possible to achieve a shared custody arrangement even when the parents disagree,” Barrett wrote in an email. “We shall see how it plays out.”

The 12-page decision is Clark v. Clark (Lawyers Weekly No. 011-046-18). The full text of the opinion is available online at sclawyersweekly.com

Follow Heath Hamacher on Twitter @SCLWHamacher



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