Kisling v. Allison

Citations: 541 S.E.2d 273; 343 S.C. 674; 2001 S.C. App. LEXIS 4Docket: 3277

Court: Court of Appeals of South Carolina; January 2, 2001; South Carolina; State Appellate Court

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Donna Joan Allison appeals a Family Court order granting custody of her daughter, Jessica Lynn Kisling, to her ex-husband, Tom Drake Kisling. The couple divorced in May 1994, with custody initially awarded to the mother. In April 1997, the father sought modifications to visitation and child support, later requesting custody in June 1998 based on a substantial change in circumstances identified by a guardian ad litem.

The appellate court recognizes its authority to assess facts based on the preponderance of evidence but is not obligated to disregard the Family Court's findings, especially regarding witness credibility, due to the Family Court's direct observation of testimonies. The welfare and best interests of the child are paramount in custody decisions.

The issue on appeal is whether the Family Court erred in finding changed circumstances that justified transferring custody to the father. The court emphasizes that South Carolina law treats both parents equally regarding custody entitlements and that no preference is given based on gender. The mother argues that no substantial change affecting Jessica's welfare occurred; however, the court disagrees, reiterating that custody decisions must consider the child's overall well-being, including various life aspects, as well as the character and fitness of both parents. The analysis of custody changes is case-specific, relying on the totality of circumstances.

For a court to grant a change of custody based on changed circumstances, the requesting party must demonstrate that sufficient facts have emerged post-original custody order, indicating that the child's best interests would be served by the change. The change must substantially impact the child's welfare, not merely reflect the parents' desires or convenience. Additionally, custody matters are primarily at the trial court's discretion, with appellate courts generally reluctant to reassess evidence.

In this case, both parents have remarried, but the significant changes affecting custody originated shortly after their divorce. 

Mother's judgment regarding Jessica's welfare has been questioned. After the divorce, she lived with Chad Brannon, with whom she had a sexual relationship while Jessica was present. Although she later ended this relationship, she then moved in with her new husband, Step-Father, before marriage, believing this would benefit Jessica. However, when asked about her choices, Mother admitted she did not prioritize Jessica during intimate moments.

Mother's poor judgment also extends to Jessica's education, as the child has experienced excessive unexcused absences and tardies. Mother attributed one absence to Jessica's incomplete homework and cited counseling sessions as the cause for others.

Mother's home life with Step-Father appears unstable. They have separated twice, and Step-Father has exhibited suicidal behavior and anger issues. Mother expressed discomfort leaving Jessica alone with him due to his temperament and parenting skills. Their relationship has been marked by frequent arguments, including one incident that turned violent. 

The family lives in limited space, with Jessica sharing a bedroom with her half-sister, and they have moved five times since 1993. Although they attend church, attendance is inconsistent, raising concerns about the moral environment in the home.

Mother has displayed significant hostility towards Father and Step-Mother, beginning when they began dating seriously and subsequently married. Expert witness Dr. Joanne Armstrong noted that Mother is deeply angered by both Father and Step-Mother. Her behavior during visitation exchanges has been problematic, marked by public disputes with Father in Jessica's presence, where she has insulted him and threatened legal action. Mother's relationship with Step-Mother is particularly fraught; she feels intimidated by their bond and has prohibited Step-Mother from participating in activities with Jessica such as cooking and bathing. Mother's accusations against Step-Mother include claims of deceit and attempts to alienate Jessica from her. Additionally, Mother has issued threats and a trespass notice against Step-Mother.

Despite claiming she is no longer affected by Step-Mother, Mother has actively discouraged Jessica from developing a relationship with her and even manipulated Jessica emotionally regarding visitation with Father. Evidence shows that Mother has attempted to limit Father's and Step-Mother's involvement in Jessica's life, including at school events.

Jessica, a bright child, is adversely impacted by the tension between her parents. Her well-being reflects the stress in the household, resulting in nightmares and physical symptoms when exposed to conflict. She exhibits anxiety, particularly during visitation exchanges, feeling a need to care for her mother. Dr. Horn's assessment highlights that Mother's behavior has contributed to Jessica's separation anxiety.

In contrast, Father has exercised more prudent judgment regarding Jessica's interests. He initiated his relationship with Step-Mother six months post-divorce and chose to keep Jessica separate from the new relationship until it was more serious, prioritizing her well-being.

Father and Step-Mother maintain a stable and supportive home environment for Jessica, contrasting with Mother's volatile household. Jessica enjoys her own bedroom at Father and Step-Mother's home, where they prioritize quality time together and engage in her spiritual growth through church activities and daily devotionals. Father encourages Jessica's relationship with Mother and Step-Father and does not speak negatively about them in her presence.

The guardian ad litem, appointed to represent Jessica's best interests, recommended transferring custody to Father, citing his more stable home life compared to Mother's, who has created a chaotic environment characterized by crises and public arguments. The guardian's role is to assist the court rather than dictate decisions, and the Family Court ultimately agreed with the guardian’s recommendation but made its own assessment of Jessica's best interests.

The Family Court found that Mother's custody resulted in exposure to inappropriate moral influences and a lack of prioritization of Jessica's needs, including negative interactions with Father and Step-Mother. In contrast, Father has demonstrated a commitment to Jessica's well-being, promoting her independence and spiritual development. The court affirmed that a change in custody to Father serves Jessica's best interests and did not abuse its discretion in doing so.