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Domestic Relations – Parent & Child – Joint Custody – Abuse Accusation – Alienation

By: South Carolina Lawyers Weekly staff//April 28, 2023//

Domestic Relations – Parent & Child – Joint Custody – Abuse Accusation – Alienation

By: South Carolina Lawyers Weekly staff//April 28, 2023//

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The appellant-Mother believed the respondent-Father had abused their daughter (Child) based on a statement made by Child; however, several investigations indicated that no abuse had occurred. Where Child is attached to both parents, Mother reacts adversely to recommendations she finds unfavorable, and Mother has a potential for unhealthy enmeshment with Child, we find exceptional circumstances warranting an award of joint custody.

We affirm the family court’s award of joint custody and child support, but we modify its award of the dependent tax deduction and remand for reconsideration of the attorney’s fee award.

Child purportedly made a sexual abuse disclosure to Mother, and licensed professional counselor Cindy Stichnoth acknowledged she believes Child made some statement to Mother regarding her “tickle spot,” which Mother claimed Child identified by pointing to her clitoris. However, DSS issued two separate notices of unfounded investigations/assessments after its investigation did not produce a preponderance of the evidence that Child is an abused or neglected child. The Travelers Rest Police Department likewise twice declined to file charges and closed its file.

More significantly, the guardian ad litem, licensed professional counselor Meredith Thompson-Loftis, and Stichnoth recommended Father have expanded, unsupervised visitation. And notably, licensed clinical psychologist Dr. James Ruffing’s report states, “There does not appear to be a propensity for sexual maladjustment or sexual impulsivity and the test results did not reflect unpredictability or peculiarity in thought or action, particularly in the sexual area.”

Thompson-Loftis explained that although Father was willing to communicate with Mother, Mother was not willing to communicate with Father; she further noted their communication was strained even before their separation. While Thompson-Loftis believed Father would encourage Child’s relationship with Mother, she testified Mother would not be able to encourage a relationship between Child and Father. She described Mother and Child as enmeshed, noting Mother “coddled” Child and “kind of enabled some of the—the attachment and the—the difficulty in separation.”

Mother and Father have been rotating Child’s placement on a weekly basis without further involvement from the family court, DSS, or law enforcement since August 30, 2019. While Mother indicated at oral argument that the visitation schedule was not working for Child, Father disagreed—and noted neither party has sought a modification based on any change in circumstances. Finally, there is a consensus among knowledgeable third parties, including the GAL and treating experts, that both Mother and Father are fit and loving parents. Thus, we find exceptional circumstances warranting the family court’s award of joint custody.

Other Issues

The family court awarded Father the annual dependent tax deduction. Because Mother and Father were awarded joint custody, we find it more appropriate to award this deduction to Father and Mother in alternating years.

The family court awarded Father $35,000 in attorney’s fees. To the extent Mother’s fees and costs include monies paid to digital forensic examiner James Boswell and/or attorney’s fees expended to address Father’s likely wiping of his devices upon learning he would be required to produce them, we find Father should be responsible for all such fees because he took “significant actions . . . on each of the computer devices that . . . impeded [the digital] investigation.” Additionally, we find Father responsible for any GAL fees related to Boswell, the computer forensic report, and the family court’s consideration of discovery related to Father’s electronic devices.

Therefore, while we affirm the family court’s denial of attorney’s fees to Mother, we remand Father’s fee award for the family court to calculate the figure to which Mother is entitled as an offset for all fees and costs related to her investigation of Father’s actions associated with the production of his electronic devices, including but not limited to the attorney’s fees and costs Mother has incurred in addressing Father’s discovery behavior before the family court.

Affirmed as modified and remanded.

Greene v. Greene (Lawyers Weekly No. 011-029-23, 17 pp.) (Stephanie McDonald, J.) Appealed from Greenville County Family Court (Katherine Tiffany, J.) Vanessa Hartman Kormylo and Scarlet Bell Moore for appellant; Kimberly Fisher Dunham for respondent. South Carolina Court of Appeals

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