Fields v. Rapley

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Erika Fields and William Fields, Appellants,

v.

Ashli Fields and Barbaree "Bob" Rapley, Respondents.

In the interest of a minor under the age of eighteen.

Appellate Case No. 2024-000686

Appeal From Dorchester County
Rosalyn Frierson-Smith, Family Court Judge

Unpublished Opinion No. 2025-UP-199
Heard June 4, 2025 – Filed June 9, 2025

AFFIRMED

Leslie Therese Sarji, of Sarji Law Firm, LLC, of
Charleston, for Appellants.

Stephen L. Hudson, of Law Offices of Stephen L.
Hudson, PC, of Columbia, for Respondent Barbaree
Rapley.

Ashli Fields, Self Represented.

Sharon Lovette, Guardian ad Litem.
PER CURIAM: This appeal arises from the family court's order granting custody
to Minor Child's biological father, Barbaree Rapley (Father). Appellants, William
and Erika Fields, are Minor Child's maternal grandfather and step-grandmother.
Appellants argue the family court erred in (1) finding the Moore1 factors
inapplicable and not considering the best interests of the child in awarding Father
custody, (2) finding Father did not relinquish custody of Minor Child to Appellants
and that Appellants were neither the psychological nor de facto custodians of
Minor Child, and (3) awarding attorney's fees to Father. We affirm.

1. Moore Factors and Best Interests

Appellants argue the family court erred in finding the Moore factors inapplicable
based on Father's fitness and failing to consider the best interests of Minor Child in
awarding custody to Father. We disagree. "It is well-settled that parents have a
protected liberty interest in the care, custody, and control of their children. This is
a fundamental right protected by the Due Process Clause." Camburn v. Smith, 355
S.C. 574, 579, 586 S.E.2d 565, 567 (2003) (quoting Troxel v. Granville, 530 U.S.
57, 65-66 (2000)). This presumption can only be overcome by clear and
convincing evidence showing either that the parent is unfit or that compelling
circumstances exist to justify government interference in the parental decision. Id.
"[W]e recognize[ ] the superior rights of a natural parent in a custody dispute with
a third party. Once the natural parent is deemed fit, the issue of custody is
decided." Kay v. Rowland, 285 S.C. 516, 517, 331 S.E.2d 781, 782 (1985). In
Kay, our supreme court "placed a substantial burden on any third party attempting
to take custody over a biological parent." Moore, 300 S.C. at 79, 386 S.E.2d at
458. South Carolina courts have repeatedly emphasized that in all custody
controversies, including those between natural parents and third parties, the best
interest of the child remains the primary and controlling consideration. Id. at 78-
79, 386 S.E.2d at 458. "[T]he superior rights of the natural parent must yield
where the interest and welfare of the child clearly require alternative custodial
supervision." Dodge v. Dodge, 332 S.C. 401, 410, 505 S.E.2d 344, 348 (Ct. App.
1998); see S.C. Code Ann. § 63-15-230(A) (Supp. 2024) ("The court shall make
the final custody determination in the best interest of the child based upon the
evidence presented."). Our supreme court in Moore outlined certain criteria for a
court to apply when a natural parent seeks to reclaim custody of his or her child

1
Moore v. Moore, 300 S.C. 75, 79, 386 S.E.2d 456, 458 (1989).
after having temporarily relinquished custody to a third party. 300 S.C. at 79-80,
386 S.E.2d at 458. Beginning with "a rebuttable presumption that it is in the best
interest of any child to be in the custody of its biological parent," the court outlined
the following four factors:

(1) The parent must prove that he is a fit parent, able to
properly care for the child and provide a good home.

(2) The amount of contact, in the form of visits, financial
support or both, which the parent had with the child
while it was in the care of a third party.

(3) The circumstances under which temporary
relinquishment occurred.

(4) The degree of attachment between the child and the
temporary custodian.

Id. (Internal citations omitted).

While the court's order first held the Moore factors to be inapplicable, it then
addressed each factor and made a factual finding. Similarly, the court questioned
whether the best interest of the child analysis was even necessary due to the Moore
factors being inapplicable. Despite these statements in the order, we find the court
nevertheless conducted the requisite analysis for each.2 In analyzing the first

2
Additionally, Appellants attempt to liken this case squarely to Alukonis v. Smith,
431 S.C. 41, 846 S.E.2d 600 (Ct. App. 2020); however, we find it is readily
distinguishable. First, in Alukonis, the biological mother was deceased. 431 S.C.
at 47, 846 S.E.2d at 603. Because one biological parent was absent from the
child's life, the grandfather was capable of reaching psychological parent status and
he did. Here, both biological parents are alive and involved in Minor Child's life.
Next, while the family court in Alukonis did grant the father primary custody, it
also found compelling circumstances to warrant secondary custody to the
grandfather. Id. at 49, 846 S.E.2d at 605. The court found the grandfather
provided clear and convincing evidence to establish that, while the natural father
was fit, compelling circumstances warranted joint custody. Id. Here, the court did
not find such compelling circumstances and, while Appellants provided some
evidence of Father's questionable behavior, we agree with the family court that
they did not provide clear and convincing evidence warranting an award of custody
to them.
Moore factor, Father's fitness, the court acknowledged his employment, sufficient
income, and suitable home. It found Appellants did not show continuous drug or
alcohol use or how it detrimentally affected Minor Child. Father testified his job at
Eagle Aviation required him to take drug tests, and the court noted he had not lost
his job due to failed drug or alcohol testing. Therefore, it found Appellants'
assertion of drug and alcohol abuse to be undermined. We agree Appellants did
not provide a clear and convincing rebuttal of Father's unfitness. The family court
was in the best position to determine the credibility of the witnesses, and it found
Father to be credible. As to the second factor, the court found there was evidence
to show Father has taken advantage of his visitation with Minor Child and
provided for her and his older child from an unrelated relationship. In addressing
this point, the court referred to the Guardian ad Litem's report relating to Father's
visitation. As to the third factor, the court found Father never relinquished custody
to Appellants because he never had custody to begin with. Further, the court found
Father provided evidence to establish he tried to reclaim Minor Child. Father may
have waited until the filing of this action to formally assert his right to custody;
however, it was Mother who originally consented to Minor Child being sent to
Appellants upon birth under the Department of Social Services' safety plan. At
that point in time, paternity had not yet been established, and Father was not listed
on the birth certificate. Finally, as to the fourth factor, the court found Minor Child
was attached to all the parties involved. However, it found Minor Child was
always aware that Appellants were her grandparents, and Mother and Father were
her parents.

Appellants assert that although the family court "paid lip service to the best
interests of the child in the Final Order" when analyzing the Moore factors and the
totality of the circumstances, the court "failed to consider the best interests of the
child, and, ultimately issued a ruling that was against the weight of the evidence
and decidedly not in the child's best interests." We disagree that the court
completely failed to consider best interests because inherent in many findings of
the order is the consideration of Minor Child's best interests. Further, the court
repeatedly acknowledged the significant role Appellants played in Minor Child's
life; but that alone does not mean it is in the best interests of Minor Child to be
placed with Appellants over a fit, biological parent. Finally, we find it important to
note the family court's order, in honoring the previous agreement between Mother
and Appellants, granted Mother visitation with the condition she is supervised by
Appellants. The previous agreement, which Father was not a party to, granted
joint custody to Appellants and Mother, with primary placement with Appellants.
Unlike in other cases dealing with compelling circumstances warranting custody or
visitation to non-parents, the threat of complete isolation of Minor Child from
Appellants is not at issue here. In considering the superior rights of a biological
parent, as well as the significant burden placed on third-parties seeking custody,
we find the family court did not err in its findings in favor of Father.

2. Psychological Parents/De Facto Custodians

Appellants argue the family court erred in finding Appellants were not de facto
custodians to Minor Child. Appellants likewise argue the family court erred in
finding Appellants were not the psychological parents of Minor Child. We
disagree and first address the psychological parent analysis.

The court determined Appellants did not rise to the level of psychological parent
status. The order acknowledges, and we agree, that our case law does not allow for
a third-party to attain psychological parent status when both biological parents are
still present in the child's life. See Middleton v. Johnson, 369 S.C. 585, 598, 633
S.E.2d 162, 169 (Ct. App. 2006) ("[W]hen both biological parents are involved in
the child's life, a third party's relationship with the child could never rise to the
level of a psychological parent, as there is no parental void in the child's life.").
The family court found both parents to be involved in Minor Child's life; therefore,
Appellants could never reach psychological parent status. We find the court did
not err when it found Appellants were not the psychological parents of Minor
Child.

We next address the family court's finding that Appellants were not de facto
custodians to Minor Child. Our legislature has provided a test to determine if a
party is a de facto custodian, which "provides for the best interests of the child to
prevail by allowing visitation and custody rights to third parties when justified[.]"
Alukonis, 431 S.C. at 56, 846 S.E.2d at 608. "The statute balances the third party's
rights against the superior rights of natural parents by requiring third parties to
prove by clear and convincing evidence that a natural parent is unfit or that other
compelling circumstances warrant third-party custody or visitation." Id. at 56-57,
846 S.E.2d at 608-09. The statute states:

(A) For purposes of this section, "de facto custodian"
means, unless the context requires otherwise, a person
who has been shown by clear and convincing evidence to
have been the primary caregiver for and financial
supporter of a child who:
(1) has resided with the person for a period of six months
or more if the child is under three years of age; or

(2) has resided with the person for a period of one year or
more if the child is three years of age or older.

Any period of time after a legal proceeding has been
commenced by a parent seeking to regain custody of the
child must not be included in determining whether the
child has resided with the person for the required
minimum period.

(B) A person is not a de facto custodian of a child until
the court determines by clear and convincing evidence
that the person meets the definition of de facto custodian
with respect to that child. If the court determines a
person is a de facto custodian of a child, that person has
standing to seek visitation or custody of that child.

(C) The family court may grant visitation or custody of a
child to the de facto custodian if it finds by clear and
convincing evidence that the child's natural parents are
unfit or that other compelling circumstances exist.

....

(E) If the court has determined by clear and convincing
evidence that a person is a de facto custodian, the court
must join that person in the action as a party needed for
just adjudication under the South Carolina Rules of Civil
Procedure.

S.C. Code Ann. § 63-15-60 (2010).

The court's order did not find clear and convincing evidence to support Appellants'
claim that Minor Child resided in their home for the statutorily required time
period to become de facto custodians. The family court acknowledged that, even if
it were to find clear and convincing evidence that Minor Child resided with
Appellants for the statutorily required time period, that finding alone would not be
enough to support an award of custody to Appellants because the court
nevertheless found Father fit and it did not find compelling circumstances
warranting an alternative determination. While we acknowledge Appellants may
fit the statutory definition of a de facto custodian, that alone is insufficient to
automatically warrant custody or visitation. See Dendy v. Gamble, 445 S.C. 367,
380, 914 S.E.2d 165, 172 (Ct. App. 2025) (finding "meeting the statutory
definition of de facto custodian does not automatically warrant custody or
visitation—the family court still has the discretion to grant visitation or custody but
only if clear and convincing evidence shows that a child's natural parents are unfit
or that other compelling circumstances exist."). Because we find Appellants failed
to meet their burden of proving Father's unfitness or compelling circumstances,
satisfaction of the statutory requirements defining de facto custodians is not
enough to warrant awarding Appellants custody. Accordingly, we affirm the
family court's finding that Appellants were neither the psychological parents nor
the de facto custodians warranting custody of Minor Child.

3. Attorney's Fees

Appellants argue the family court erred in awarding attorney's fees to Father. In
awarding attorney fees, the court should consider the parties ability to pay their
own fee, the beneficial results obtained by the attorney, the parties' respective
financial conditions, and the effect of the fee on each party's standard of living.
E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992). In
determining the amount of attorney fees to award, the court should consider the
nature, extent, and difficulty of the services rendered, the time necessarily devoted
to the case, counsel's professional standing, the contingency of compensation, the
beneficial results obtained, and the customary legal fees for similar services.
Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).
Consistent with our affirmance of the award of custody to Father, we also agree the
family court's analysis of the requisite factors supported the attorney's fees award.
Accordingly, we affirm. See Stevenson v. Stevenson, 295 S.C. 412, 415, 368
S.E.2d 901, 903 (1988) (holding the decision whether to award attorney fees is
within the sound discretion of the family court, the exercise of which will not be
overturned absent a showing of abuse.).

Based on the foregoing, the order of the family court is

AFFIRMED.

THOMAS, HEWITT, and CURTIS, JJ., concur.