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When is a Change in Circumstances Enough for Custody Modification in SC?

When is a Change in Circumstances Enough for Custody Modification in SC?
Axelrod & Associates, P.A.

In Fossett v. Fossett, decided yesterday, the SC Court of Appeals reviews when a change in circumstances is sufficient for a custody modification, finding that 1) the child’s custodial preference, in this case, was counterbalanced by the father’s manipulative behavior towards the child and 2) remarriage alone is not enough to justify a custody modification.

Below, we will look at custody modifications in SC, including:

  • When a change in circumstances is enough for a custody modification,
  • The effect of the child’s custodial preference on a proposed change in custody,
  • The effect of a re-marriage on a proposed custody change, and
  • Other changes in circumstances that may support a custody modification in SC.

What is a Change in Circumstances?

The controlling consideration in any family court case involving a child is, “What is in the child’s best interest?”

When there is an existing custody order in a family court case, it can only be modified when there is a change in circumstances. To be sufficient to justify a custody modification, the change in circumstances must be in the child’s best interest:

Because the best interest of the child is the overriding concern in all child custody matters, when a non-custodial parent seeks a change in custody, the non-custodial parent must establish the following: (1) [] a substantial change in circumstances affecting the welfare of the child and (2) a change in custody is in the overall best interests of the child. Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 35 (2004).

A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the child[] will be served by the change.” Id. (quoting Stutz v. Funderburk, 272 S.C. 273, 278, 252 S.E.2d 32, 34 (1979)).

In Fossett, the SC Court of Appeals considered two changes in circumstances, the child’s preference and the father’s remarriage, and decided that, under the facts of this case, they were insufficient to support a change in custody.

Child’s Custodial Preference

The child’s custodial preference is a factor that the court must consider when deciding what is in the best interest of the child, see SC Code § 63-15-240(B)(3), but 1) the significance of the child’s preference will depend on the child’s age and the circumstances of the case, Brown v. Brown, 362 S.C. 85, 93, 606 S.E.2d 785, 789 (Ct. App. 2004); see also Moorhead v. Scott, 259 S.C. 580, 585, 193 S.E.2d 510, 513 (1972), and 2) the other 240(B) factors including a parent’s manipulative behavior toward the child may outweigh the child’s preference.

In Fossett, the Court found that 1) the ten-year-old child’s preference should be given little weight due to the child’s young age and lack of maturity, and 2) the child’s preference to live with the father was outweighed by the father’s manipulative behavior involving the child in his dispute with the mother.

The manipulative behavior included showing the child disparaging emails the father had sent to the mother and sending envelopes with the child to give to the mother that were marked with the mother’s maiden name (the mother chose to keep her married name to remain connected with the children, but the father refused to refer to her by her married name).


The father also claimed that his remarriage and supportive family environment justified a custody modification, but the Court of Appeals found that remarriage alone, absent additional supporting factors, is insufficient to justify a change in custody.

The Court acknowledges that the father “has fostered a healthy home environment for the boys,” but notes that the GAL “determined that the children are equivalently served in Mother’s care.”

What are Other Changes in Circumstances That May Be Sufficient for Custody Modification?

There are many potential changes in circumstances that could support a finding that a custody modification is in a child’s best interest, however, including:

  • A custodial parent’s interference with the non-custodial parent’s relationship with the child,
  • False allegations of child abuse,
  • Divorce or remarriage that results in instability,
  • Exposure of the child to harmful activities like substance abuse, overnight romantic visits, pornography, or criminal behavior,
  • Instability in the custodial parent’s home,
  • Educational problems that the custodial parent can’t or won’t resolve,
  • The noncustodial parent’s rehabilitation, or
  • Other issues that make the custodial parent’s home unsafe.

Changes in Circumstances That Are Not Likely to Be Sufficient for a Change in Custody

Some changes in circumstances that, without additional supporting factors, are unlikely to result in a custody modification include:

  • The custodial parent’s relocation alone, unless the custody change is in the child’s best interest (see, McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982). Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32, 35 (2004)), or
  • Remarriage without additional supporting factors.

The court will consider all relevant factors when determining whether to change a child custody order. A change in circumstances that, alone, would not have been sufficient, may be enough when there are additional supporting factors. Similarly, a change in circumstances that would have been sufficient for a custody modification may be counterbalanced by other factors that weigh against the change in custody.

If you are considering asking the family court to order a change in custody, your SC child custody attorney will need to prove 1) that there is a sufficient change in circumstances and 2) that the custody modification is in the child’s best interest.

Got Axelrod?

If you believe a change in circumstances will justify a custody modification, or if your child’s noncustodial parent is seeking a change in custody, call your SC child custody lawyer at Axelrod and Associates for a consultation.

Call now at 843-258-4254 or contact us on our website to speak with a Myrtle Beach child custody modification attorney today.

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