Sometimes a parent is behaves so badly, or has significant mental health and/or substance abuse issues, that at the time of trial they are unfit to have visitation with their children.  This puts the trial court in a very difficult situation.

This issue came to light in an opinion issued by the SC Court of Appeals in the matter of Elena V. Glinyanay f/k/a Elena V. Tobias v. William A. Tobias. When the case went to trial in June of 2019 Dad had a host of problems affecting his desire for custody and/or unsupervised visitation.  I am sure that his attorney did everything possible to get Dad in a position to be awarded custody or unsupervised visits, but those efforts were apparently in vain.

At the conclusion of trial the court ruled that Father could have no visitation with his children until he underwent a psychological evaluation and complete any recommended treatment.  The court further ordered that Dad's counselor shall coordinate with his children's counselor and the two of them, working together, would adjust Dad's visitation as they found appropriate.  Dad was also given the right to petition the court 6 months after the Judgement for more visitation if he was unhappy with the advise and recommendations of the counselors.

The trial judge was in a difficult position.  His analysis of the facts determined Dad was not fit for any visitation, so he created a plan for Dad to work through so he could get back in his kids lives.  The problem was, that in spite of his best intentions, the Judge's ruling ran afoul of our rules regarding custody.

The Court of Appeals ruled that "deciding issues related to the best interests of children, including visitation, is the exclusive authority and responsibility of the family court, not third parties. Singh v. Singh, 434 S.C. 223, 232, 863 S.E.2d 330, 334 (2021) ("[T]he family court cannot delegate its authority to determine the best interests of the children . . . .").

So what now?  I imagine the trial court will simply amend its order to redact provisions in the final order granting authority to the counselors to adjust visitation.  Dad's only option will be to file another case in the family court if and when he feels the issues raised by the Court have been resolved: which is exactly what the Court was trying to avoid by involving the counselors in Dad's visitation.

Guy Vitetta

Charleston SC