The pandemic has taught us how amazing technologies like FaceTime and Zoom can be in connecting us to the loved ones we can’t be with physically. But it’s also been a lesson in all the ways that those substitutes for in-person interactions still fall well short of the genuine article.
The South Carolina Supreme Court has cited many of these same shortcomings in a Sept. 22 decision in which it declined to give a biological mother credit for her (pre-pandemic) electronic visitations with her daughter. In its ruling, the court unanimously reversed an unpublished 2019 decision by the state’s Court of Appeals which had reversed a trial court ruling terminating the biological mother’s parental rights.
“Whether a parent consistently pursues—or often chooses not to pursue—FaceTime or telephone contact can be important evidence on the difficult question of whether the failure to make court-ordered visitation was understandable, or willful,” Justice John Cannon Few wrote for the court. “However, FaceTime or telephone contact is not visitation. As the family court judge aptly stated in the November 2018 order, ‘A parent cannot hug a child or dry a crying child’s tears via FaceTime.’”
Brittney and Lukas Stasi were granted temporary custody of their then-two-year-old niece in 2015. A final custody order approved later that year gave the girl’s biological mother, Mallory Sweigart, limited visitation rights, but over a period of nearly three years, Sweigart saw her daughter in person only four times. During this period, Sweigart sought to regain legal custody of her daughter, and the Stasis filed an action to terminate her parental rights, which York County Family Court Judge Thomas Henry White IV granted. After the appeals court reversed that ruling, the Supreme Court granted the Stasis’ petition to review the case.
Few began by noting that under state law, a parent’s rights may be terminated if their child has lived outside their home for a period of six months, and during that time the parent has willfully failed to visit the child. As the facts in the case were not in dispute, the case turned on whether Sweigart’s failure to visit her daughter was willful. Willfulness, in turn, is a question of intent, and a question of a parent’s intent in the life of a child is difficult to answer, Few said.
In this case, there was considerable mitigating evidence indicating that Sweigart’s failures to visit her daughter were “understandable, at times unavoidable,” and Few acknowledged that determining whether those failures were willful “has not been an easy judgment call.” During the period in question, Sweigart lived in Florida, where she was receiving treatment for mental health issues and experiencing financial difficulties. Further, for part of the period, the Stasis prevented Sweigart from visiting her daughter.
However, other factors supported the trial court’s finding that Sweigart’s failure to visit her daughter was nevertheless willful. Few noted that Sweigart had made multiple conscious decisions not to visit with her daughter on court-ordered dates, and had been offered the opportunity to move to North Carolina, only 30 minutes away from the Stasis, but chose to continue living in Florida. In addition, two of the four in-person visits happened during court dates and were deemed incidental.
The Court of Appeals, in its opinion reversing the trial court’s order, said that attempts to communicate with a child when a parent can’t otherwise visit are always relevant when considering whether a failure to visit was willful. The Supreme Court agreed, but said that in this case their relevance actually cut in the other direction since Sweigart had failed to exercise almost half of her scheduled FaceTime calls over the period in question.
“One would hope a parent who claims she suffers difficulties that keep her from visiting her child, but who nevertheless desires to do so, would exercise all of her permitted FaceTime calls,” Few wrote. “The fact Mallory missed any of the FaceTime calls is difficult to understand. The fact she missed almost half of them is convincing evidence her failure to visit was willful.”
Thomas McDow and Erin Urquhart of McDow and Urquhart in Rock Hill and Barrett Martin of Rock Hill represented the Stasis. McDow said that the court did not absolutely rule out counting FaceTime visits as visitation in termination of parental rights cases, but it did put some fairly strong parameters on it. He also said that while he found cases in several other jurisdictions that touched on the issue, none of them dealt with it head-on.
“What we have now I think is the most definitive case in the nation as to whether or not FaceTime counts as visitation when dealing with abandonment,” McDow said. “I think it adds a degree of responsibility. If a lawyer is preparing an order for a judge that awards one party visitation rights, and they expect that some of the visitation will be exercised via FaceTime, that’s going to need to be stated explicitly in the order.”
Stephen Schusterman of Rock Hill represented Sweigart. Schusterman said that the relevance of Sweigart’s visits with her daughter via FaceTime was the central question at the trial level, and that the implications of the court’s ruling would be felt far and wide.
“I thought that the trial court had taken a very limited perspective on FaceTime, given technology, given the environment that we live in today, given the pandemic,” Schusterman said. “When the Court of Appeals spoke of it, I think they took the expansive view that I was looking for. I was certainly surprised by the view that the Supreme Court took, not just for this case, but as we move forward with the restrictions on travel and the ability to see loved ones, I was surprised by the restrictive approach that the Supreme Court chose to take regarding the use of technology.”
Schusterman also said that the closeness of the facts in the case that the court alluded to made the case like “a proverbial legal quarter standing on edge” that could have fallen either way.
The court’s opinion touched on the significance of in-person interaction in another way as well. Unlike the Court of Appeals, the Supreme Court granted a request to hear oral arguments in the case, and Few wrote that the justices, both individually and collectively, had found oral argument to be very helpful in the case.
“I think that paragraph is going to be very important to appellate lawyers in South Carolina in the future,” McDow said.
The 16-page decision is Stasi v. Sweigart (Lawyers Weekly No. 010-055-21). The full text of the opinion is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan