April 11, 2018 - Filed May 23, 2018
From Orangeburg County Michael S. Holt, Family Court Judge
Edward Green, of Leon E. Green, PC, of Aiken, for Appellant.
B. Jackson, Jr., of Nester & Jackson, PA, of Orangeburg,
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.We reverse and remand.
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.
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. 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.
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
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.
the family court err in granting custody to third parties
over a natural parent?
the family court err in finding there was not a substantial
change in circumstances warranting a change in custody?
proper standard of review in family court matters is de novo
. . . ." Stoney v. Stoney, Op. No. 27758 (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. ...