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South Carolina Child Custody: When Courts Can Suspend Visitation Rights – Glinyanay v. Tobias Analysis

South Carolina Child Custody: When Courts Can Suspend Visitation Rights – Glinyanay v. Tobias Analysis

Important Custody Decision from South Carolina Court of Appeals Addresses Children’s Mental Health and Visitation Rights

The South Carolina Court of Appeals recently issued a significant ruling in Glinyanay v. Tobias that provides crucial guidance for family law attorneys handling complex custody cases involving children’s mental health concerns. This February 2022 decision addresses several critical issues that frequently arise in South Carolina custody litigation, including the admissibility of children’s statements to therapists, when visitation can be suspended, and the limits of judicial authority in delegating custody decisions.

Case Background: A Contested Custody Battle
The case involved divorced parents who had been engaged in sporadic custody litigation since their 2011 divorce. The mother sought sole custody and suspension of the father’s visitation based on allegations that emerged in 2017, including claims that the father had inappropriately touched one of their daughters. While it’s crucial to note that no finding of abuse was ever made, the case proceeded based on the children’s mental health needs and their expressed fears about visitation.

Key Legal Issues for South Carolina Family Law Practitioners
1. Admissibility of Children’s Statements to Mental Health Professionals
The Court of Appeals made an important ruling regarding the hearsay exception under Rule 803(4), SCRE for statements made for medical diagnosis or treatment. The court specifically held that:

Statements made by children to therapists and mental health counselors are admissible under the medical diagnosis and treatment exception to hearsay

This represents the first clear South Carolina appellate guidance on whether Rule 803(4) extends to mental health professionals

The court adopted the federal approach, noting that “every Court of Appeals to consider this issue has determined that statements made to a mental health professional for the purposes of diagnosis or treatment qualify under the hearsay exception”

Practice Tip: When representing clients in custody cases, attorneys should be aware that children’s statements to therapists can be admitted without requiring the children to testify, provided the statements were made for treatment purposes and were reasonably pertinent to diagnosis or treatment.

2. Children’s Right Not to Testify in Custody Proceedings
The court upheld the family court’s decision to quash a subpoena requiring the teenage daughter to testify, distinguishing custody cases from DSS intervention proceedings. The court found that:

Rule 23, SCRFC gives family courts discretion to determine when children’s testimony is “essential to establish the facts alleged”

The truth of alleged events was not essential when the therapists’ diagnoses were based on the children’s perceptions and responses, not whether events actually occurred

The family court properly exercised its discretion under Rule 22, SCRFC to interview the child privately

This ruling provides important protection for children in contentious custody disputes while balancing parents’ due process rights.

3. Suspension of Visitation Without Finding of Unfitness
One of the most significant aspects of this decision is the court’s affirmation that visitation can be suspended without a finding that a parent is unfit. The Court of Appeals held that:

A showing of changed circumstances and the children’s best interests is sufficient to suspend visitation

Evidence showed both children were diagnosed with PTSD and anxiety related to their relationship with their father

The teenagers’ own preferences against visitation were properly considered

The suspension was “without prejudice,” meaning it could be revisited

Key Standard: The controlling consideration remains “the welfare and best interest of the child” under South Carolina law.

4. Improper Delegation of Judicial Authority
In a victory for the father, the Court of Appeals reversed the family court’s order that allowed therapists to determine when and if visitation could resume. The appellate court firmly stated:

“Deciding issues related to the best interests of children, including visitation, is the exclusive authority and responsibility of the family court, not third parties.”

This follows established South Carolina precedent from cases like Singh v. Singh (2021) that family courts cannot delegate their authority to determine children’s best interests.

Practice Note: While courts can order therapy and require completion of treatment programs, they must retain ultimate decision-making authority over visitation schedules and modifications.

Implications for South Carolina Family Law Practice
For Attorneys Representing Primary Custodians

Children’s statements to therapists can provide powerful evidence without requiring traumatic testimony

Mental health professionals’ opinions carry significant weight in custody determinations

Visitation suspensions are possible when supported by evidence of children’s mental health impacts

For Attorneys Representing Non-Custodial Parents

Challenge the basis for mental health professionals’ opinions through cross-examination

Ensure courts retain decision-making authority rather than delegating to third parties

Consider requesting specific benchmarks for reunification rather than open-ended suspensions

Attorney’s Fees Considerations
The Court of Appeals reversed the $12,500 attorney’s fee award, finding that despite the mother’s beneficial result, the father’s significantly lower income ($1,074 monthly gross after child support) made the award inappropriate. This reinforces that beneficial results alone don’t guarantee fee awards under E.D.M. v. T.A.M. factors.

Practical Takeaways for South Carolina Custody Cases

1. Document Mental Health Treatment: Ensure children’s therapists maintain detailed records that could become admissible evidence

2. Consider Rule 803(4) Strategic Applications: Statements to mental health providers can be powerful evidence without requiring children’s testimony

3. Preserve Judicial Authority: Object to any orders that delegate custody or visitation decisions to non-judicial parties

4. Balance Due Process Concerns: While confrontation rights exist in civil cases, they must be balanced against children’s best interests

5. Financial Declarations Matter: Accurate financial disclosures remain crucial for fee determinations

Conclusion
Glinyanay v. Tobias provides essential guidance for South Carolina family law practitioners handling complex custody cases involving children’s mental health concerns. The decision clarifies the admissibility of therapeutic statements, confirms courts’ authority to suspend visitation based on best interests, and reinforces limits on judicial delegation. As custody cases increasingly involve mental health considerations, this precedent will prove invaluable for protecting children while preserving parental rights within appropriate legal boundaries.

By Suzanne Klok|2025-11-12T17:58:04+00:00December 15th, 2023|Discovery, Family Law, hearsay|Comments Off on South Carolina Child Custody: When Courts Can Suspend Visitation Rights – Glinyanay v. Tobias Analysis

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South Carolina Child Custody: When Courts Can Suspend Visitation Rights – Glinyanay v. Tobias Analysis

Important Custody Decision from South Carolina Court of Appeals Addresses Children’s Mental Health and Visitation Rights

The South Carolina Court of Appeals recently issued a significant ruling in Glinyanay v. Tobias that provides crucial guidance for family law attorneys handling complex custody cases involving children’s mental health concerns. This February 2022 decision addresses several critical issues that frequently arise in South Carolina custody litigation, including the admissibility of children’s statements to therapists, when visitation can be suspended, and the limits of judicial authority in delegating custody decisions.

Case Background: A Contested Custody Battle
The case involved divorced parents who had been engaged in sporadic custody litigation since their 2011 divorce. The mother sought sole custody and suspension of the father’s visitation based on allegations that emerged in 2017, including claims that the father had inappropriately touched one of their daughters. While it’s crucial to note that no finding of abuse was ever made, the case proceeded based on the children’s mental health needs and their expressed fears about visitation.

Key Legal Issues for South Carolina Family Law Practitioners
1. Admissibility of Children’s Statements to Mental Health Professionals
The Court of Appeals made an important ruling regarding the hearsay exception under Rule 803(4), SCRE for statements made for medical diagnosis or treatment. The court specifically held that:

Statements made by children to therapists and mental health counselors are admissible under the medical diagnosis and treatment exception to hearsay

This represents the first clear South Carolina appellate guidance on whether Rule 803(4) extends to mental health professionals

The court adopted the federal approach, noting that “every Court of Appeals to consider this issue has determined that statements made to a mental health professional for the purposes of diagnosis or treatment qualify under the hearsay exception”

Practice Tip: When representing clients in custody cases, attorneys should be aware that children’s statements to therapists can be admitted without requiring the children to testify, provided the statements were made for treatment purposes and were reasonably pertinent to diagnosis or treatment.

2. Children’s Right Not to Testify in Custody Proceedings
The court upheld the family court’s decision to quash a subpoena requiring the teenage daughter to testify, distinguishing custody cases from DSS intervention proceedings. The court found that:

Rule 23, SCRFC gives family courts discretion to determine when children’s testimony is “essential to establish the facts alleged”

The truth of alleged events was not essential when the therapists’ diagnoses were based on the children’s perceptions and responses, not whether events actually occurred

The family court properly exercised its discretion under Rule 22, SCRFC to interview the child privately

This ruling provides important protection for children in contentious custody disputes while balancing parents’ due process rights.

3. Suspension of Visitation Without Finding of Unfitness
One of the most significant aspects of this decision is the court’s affirmation that visitation can be suspended without a finding that a parent is unfit. The Court of Appeals held that:

A showing of changed circumstances and the children’s best interests is sufficient to suspend visitation

Evidence showed both children were diagnosed with PTSD and anxiety related to their relationship with their father

The teenagers’ own preferences against visitation were properly considered

The suspension was “without prejudice,” meaning it could be revisited

Key Standard: The controlling consideration remains “the welfare and best interest of the child” under South Carolina law.

4. Improper Delegation of Judicial Authority
In a victory for the father, the Court of Appeals reversed the family court’s order that allowed therapists to determine when and if visitation could resume. The appellate court firmly stated:

“Deciding issues related to the best interests of children, including visitation, is the exclusive authority and responsibility of the family court, not third parties.”

This follows established South Carolina precedent from cases like Singh v. Singh (2021) that family courts cannot delegate their authority to determine children’s best interests.

Practice Note: While courts can order therapy and require completion of treatment programs, they must retain ultimate decision-making authority over visitation schedules and modifications.

Implications for South Carolina Family Law Practice
For Attorneys Representing Primary Custodians

Children’s statements to therapists can provide powerful evidence without requiring traumatic testimony

Mental health professionals’ opinions carry significant weight in custody determinations

Visitation suspensions are possible when supported by evidence of children’s mental health impacts

For Attorneys Representing Non-Custodial Parents

Challenge the basis for mental health professionals’ opinions through cross-examination

Ensure courts retain decision-making authority rather than delegating to third parties

Consider requesting specific benchmarks for reunification rather than open-ended suspensions

Attorney’s Fees Considerations
The Court of Appeals reversed the $12,500 attorney’s fee award, finding that despite the mother’s beneficial result, the father’s significantly lower income ($1,074 monthly gross after child support) made the award inappropriate. This reinforces that beneficial results alone don’t guarantee fee awards under E.D.M. v. T.A.M. factors.

Practical Takeaways for South Carolina Custody Cases

1. Document Mental Health Treatment: Ensure children’s therapists maintain detailed records that could become admissible evidence

2. Consider Rule 803(4) Strategic Applications: Statements to mental health providers can be powerful evidence without requiring children’s testimony

3. Preserve Judicial Authority: Object to any orders that delegate custody or visitation decisions to non-judicial parties

4. Balance Due Process Concerns: While confrontation rights exist in civil cases, they must be balanced against children’s best interests

5. Financial Declarations Matter: Accurate financial disclosures remain crucial for fee determinations

Conclusion
Glinyanay v. Tobias provides essential guidance for South Carolina family law practitioners handling complex custody cases involving children’s mental health concerns. The decision clarifies the admissibility of therapeutic statements, confirms courts’ authority to suspend visitation based on best interests, and reinforces limits on judicial delegation. As custody cases increasingly involve mental health considerations, this precedent will prove invaluable for protecting children while preserving parental rights within appropriate legal boundaries.