Law v. Law

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Norris Samuel Law, III,       
Respondent,

v.

Penny Jean Morris Law,       
Appellant.

Appeal From Berkeley County

Robert R. Mallard, Family Court Judge

Unpublished Opinion No. 2004-UP-155

Heard February 11, 2004 – Filed March
9, 2004

AFFIRMED IN PART, REVERSED IN PART, and REMANDED

David L. DeVane, of Charleston, for Appellant.

Margaret D. Fabri, of Charleston, for Respondent.

PER CURIAM: Norris Samuel Law,
III (Father) brought an action against Penny Jean Morris Law (Mother) alleging
several changes in circumstances that would justify a change in custody of their
daughter.  The family court judge granted custody to Father with visitation
to Mother every other weekend, alternating holidays, and one month in the summer. 
Mother appeals.  We affirm in part, reverse in part, and remand.

FACTS

Mother and Father separated
in June of 1997 and entered into an agreement concerning the custody of their
then two-year-old daughter, Grayson.  The agreement provided they would share
joint legal custody of Grayson, with Mother having primary physical custody
and Father having secondary physical custody with “liberal rights of visitation.” 
The parties also agreed that neither Mother nor Father would have the minor
child in their home if a paramour was visiting overnight.  The parties divorced
in September of 1997 and incorporated the agreement into their final decree
of divorce. 

At some time near the end of 1997, Father
began living with his girlfriend, Jennifer, whom he married in January 1999. 
Mother also began living with her boyfriend, Jason Belcher, during 1997.  Mother
later married Mr. Belcher on August 22, 2000.  From 1997 to August 2000, Mother
and Father shared custody of Grayson on nearly a fifty-fifty basis.  Initially,
Mother had physical custody of Grayson one week and Father had physical custody
the next week.  At some point in 1998, Mother proposed a modified visitation
schedule, and the parties agreed to Grayson alternating three days with Mother
and two days with Father. 

According to Father, Mother attempted
to change the visitation schedule every three months or so.  Father testified
that in order to ensure he had time with Grayson, he would pay more money for
daycare or dance class, in addition to his child support obligation.  In September
1999, Mother sent Father a letter in which she attempted to change Father’s
visitation to every other Friday through Monday.  Mother also set forth Father’s
different payment obligations and informed Father she would be performing all
“mothering” duties, such as taking Grayson for doctor visits, buying clothes,
and making decisions regarding Grayson’s extracurricular activities.  Following
this letter, the parties ultimately compromised on an alternative visitation
schedule giving Father three weekends plus one week with Grayson every month. 
However, in August of 2000, Mother phoned Father and notified him that because
Grayson was beginning elementary school his visitation would be limited to every
other weekend.  Father tape recorded this telephone conversation.  

On August 21, 2000, Father filed this
action alleging a substantial change in circumstances supporting a change in
custody and seeking an emergency ex parte order of custody.  Father
pled, in the alternative, for joint custody of Grayson, with the non-custodial
parent to have liberal rights of visitation which he defined as “a minimum of
fifty percent (50%) of the time, temporarily and permanently.”  Mother counterclaimed
for sole custody.  An ex parte order granted custody to Father
on August 21, 2000, and a hearing was set for August 23, 2000.  At the hearing,
Father was granted temporary custody.  Mother’s motion for a stay of the temporary
order and petition for supersedeas were denied. 

At the final merits hearing in June 2001,
Mother objected on several occasions to Father’s attorney’s line of questioning,
arguing that because this was an action for a change of custody rather than
a de novo proceeding, Father should not be permitted to introduce
any evidence other than that relating to the alleged changes in circumstances. 
The family court judge admitted the testimony, finding it relevant.  In addition,
a transcript of the August 2000 telephone conversation was admitted at the hearing
over Mother’s objection.  The family court issued a final order on September
28, 2001, granting sole custody to Father, with visitation for Mother to include
alternating weekends, alternating holidays, and one month in the summer.  Mother
appeals.    

STANDARD OF REVIEW

Decisions affecting the custody
of a child are matters left principally to the discretion of the family court.  
Shirley v. Shirley, 342 S.C. 324, 330, 536 S.E.2d 427, 430 (Ct. App.
2000).  However, in appeals from the family court, this court has the authority
to find facts in accordance with our view of the preponderance of the evidence. 
Greene v. Greene, 351 S.C. 329, 335, 569 S.E.2d 393, 397 (Ct. App. 2002). 
This broad scope of review does not require us to disregard the findings of
the family court.  Id.  Nor does it require us to ignore the fact that
the family court judge, “who saw and heard the witnesses, was in a better position
to evaluate their credibility and assign comparative weight to their testimony.” 
Id. (citation omitted).  An appellate court should be reluctant to substitute
its own evaluation of the evidence on child custody for that of the family court. 
Shirley, 342 S.C. at 331, 536 S.E.2d at 430.

LAW/ANALYSIS

I.       Custody

In arguing the family court erred in
awarding custody to the Father, Mother asserts that the court incorrectly treated
this case as a de novo custody dispute instead of a change of
custody dispute.  See Allison v. Eudy, 330 S.C. 427, 429, 499
S.E.2d 227, 228 (Ct. App. 1998) (stating that a finding in the family court’s
order denying a motion for reconsideration that “‘the scales tip in [the non-movant’s
favor],’” indicated the family court incorrectly treated the change in custody
action as a de novo custody dispute).  We disagree. 

In all child custody cases, the paramount
considerations are the child’s welfare and best interests.  Hollar v. Hollar,
342 S.C. 463, 472, 536 S.E.2d 883, 888 (Ct. App. 2000).  The party seeking a
change in custody assumes the burden of proof and must show changed circumstances
occurring subsequent to the entry of the original custody order that substantially
affect the interest and welfare of the child.  See id. at 473,
536 S.E.2d at 888.  In determining a change in custody, the family court should
consider how the custody decision will impact all areas of the child’s life
and must assess each party’s character, fitness and attitude as they impact
the child.  Shirley, 342 S.C. at 330, 536 S.E.2d at 430.   “‘There are
no hard and fast rules for determining when to change custody and the totality
of the circumstances peculiar to each case constitutes the only scale upon which
the ultimate decision can be weighed.’”  Id. (quoting Davenport v.
Davenport, 265 S.C. 524, 527, 220 S.E.2d 228, 230 (1975)).  In order to
determine whether a change in circumstances has been shown, the court must consider
the facts leading up to and surrounding the present controversy.  Stutz v.
Funderburk, 272 S.C. 273, 277, 252 S.E.2d 32, 34 (1979).  The usual factors
family courts consider in determining the best interests of children are appropriate
considerations.  Glanton v. Glanton, 314 S.C. 58, 60 n. 3, 443 S.E.2d
810, 811 n.3 (Ct. App. 1994).

In support of Mother’s argument that
the family court incorrectly treated this change of custody case as a de
novo custody dispute, Mother asks this court to consider, (1) Father’s
testimony, over Mother’s objection, about Mother’s family background and home
life, (2) comments made by the family court judge in a telephone conference,
and (3) that the final order mentioned the standard used for a de novo
custody case, in addition to the standard for a change in custody case.  We
do not believe Mother’s assertions are sufficient to find the family court incorrectly
treated this case as a de novo custody dispute. 

First, the testimony concerning Mother’s
family background and home life, which was admitted over Mother’s objections,
does not demonstrate that the judge improperly treated the case as a de
novo dispute.  Rather, the testimony demonstrates that the judge properly
admitted evidence related to the child’s best interest and the totality of the
circumstances.  See Hollar, 342 S.C. at 472-73, 536 S.E.2d at
888; Shirley, 342 S.C. at 330, 536 S.E.2d at 430. 

We likewise reject Mother’s second argument
that the family court judge’s remarks made during a telephone conference that
Father presented a better situation do not demonstrate that the case was treated
de novo.  Initially we note that no transcript of the telephone
conference appears in the record.  See Bonaparte v. Floyd, 291
S.C. 427, 444, 354 S.E.2d 40, 50 (Ct. App. 1987) (stating that the appellant
has the burden of furnishing a sufficient record for this court’s review).  
Mother asks this court to consider her attorney’s restatement of these remarks
during a Rule 59(e), SCRCP, hearing as evidence that the family court judge
not only made the remarks but that the judge improperly treated the case as
a de novo custody dispute.  However, it is well settled law that
arguments of counsel do not constitute evidence.  See e.g. Sosebee
v. Leeke, 293 S.C. 531, 535, 362 S.E.2d 22, 24 (1987).  Further, these remarks
are not reflected in the final change of custody order except in the order’s
consideration of the best interests of the child and the totality of the circumstances.  
To the extent that the final order and the judge’s remarks at the Rule 59(e)
hearing are in conflict, the written order controls.  See Corbin v.
Kohler Co., 351 S.C. 613, 621, 571 S.E.2d 92, 97 (Ct. App. 2002).  The final
order does not improperly use the de novo custody standard in
changing custody as Mother argues.  Mother is correct in that the order concludes,
based on the totality of the circumstances and the best interests of the child,
that Father should have the primary, sole custody of Grayson.  However, Mother
overlooks the court’s initial determination that “Father has shown a substantial
change in circumstance since the time of the parties’ agreement and original
custody order which impacts and affects the best interest of the child.”  The
order also sets forth several changes in circumstance to support this finding. 
It was only after making this determination that the order addressed the child’s
best interests based on the totality of the circumstances.  See Hollar,
342 S.C. at 472-73, 536 S.E.2d at 888; Shirley, 342 S.C. at 330, 536
S.E.2d at 430. 

Mother also argues that the family court
erred in awarding custody to Father because Father failed to show a substantial
change in circumstances materially affecting the best interests of the child. 
Father alleged three changes in circumstance warranting a change in custody,
including: (1) Mother’s unilateral decision to change Father’s visitation, (2)
Father’s remarriage and Grayson’s close relationship with his new wife, and
(3) Mother’s cohabitation with her boyfriend in violation of the prior court
order.   The family court judge changed custody to Father based on the totality
of the circumstances, including all three of the changed circumstances asserted
by Father.  We affirm the family court order changing custody to the Father
based on Mother’s decision to significantly reduce Father’s visitation with
Grayson.

In order to grant a change of custody, the
party seeking the change bears the burden of showing changed circumstances occurring
subsequent to the entry of the original custody decree.  Kisling v. Allison,
343 S.C. 674, 679, 541 S.E.2d 273, 275 (Ct. App. 2001) (quoting Shirley,
342 S.C. at 330, 536 S.E.2d at 430).  The change in circumstance relied on must
be one that would substantially affect the interest and welfare of the child,
not merely the wishes or convenience of the parties.  Id. at 679, 541
S.E.2d at 275-76.

It was error for the family court judge
to consider Mother’s live-in relationship to be a change of circumstances. 
“A parent’s morality, while a proper factor for consideration, ‘is limited in
its force to what relevancy it has, either directly or indirectly, to the welfare
of the child.’”  Stroman v. Williams, 291 S.C. 376, 378, 353 S.E.2d 704,
705 (Ct. App. 1987) (citation omitted) (finding no material change in circumstances
occurred from mother’s live-in relationship with lesbian partner where child’s
welfare was not adversely affected).  In the present case, there is no evidence
showing Grayson was adversely affected by Mother and Stepfather living together
prior to marriage.  In fact, Father agreed that both Mother and Stepfather are
positive influences in Grayson’s life, and the Stepfather has “assisted as [a
stepparent] in raising her, nurturing her, and attending to her needs.”  In
addition, Father has had knowledge of Mother’s cohabitation since 1997, and
Father himself cohabitated with his present wife prior to their marriage in
1999. 

Further, any adverse affect Mother’s
cohabitation may have had on her moral fitness was remedied by Mother’s subsequent
marriage to her boyfriend.  See Sealy v. Sealy, 295 S.C. 281,
284, 368 S.E.2d 85, 87 (Ct. App. 1988) (“[R]emarriage which restores ‘moral
fitness’ has been recognized as a factor to be considered in awarding change
of custody.”); Baer v. Baer, 282 S.C. 362, 365, 318 S.E.2d 582, 583 (Ct.
App. 1984) (finding mother’s marriage to her paramour reinstated her moral fitness). 
Finally, we do not see any merit to Father’s argument that Mother’s remarriage
demonstrated her lack of judgment because it occurred two days before the emergency
hearing.  Mother obviously intended to marry her boyfriend prior to Father filing
the present action, as evidenced by the fact that a marriage license was acquired
ten days prior to the filing.  There is no evidence to suggest that the timing
of Mother’s remarriage materially affected the best interest and welfare of
Grayson.  See Baer, 282 S.C. at 365, 318 S.E.2d at 584 (finding
no evidence to show that mother’s sudden marriage substantially affected the
welfare of the children).

Moreover, although the consent order
prohibited Mother or Father from cohabiting with a member of the opposite sex
while Grayson was present, “[t]he court may not award or change custody to punish
a parent for acting in violation of the orders of the court.”  Smith v. Smith,
261 S.C. 81, 85, 198 S.E.2d 271, 273 (1973).  See also Stroman,
291 S.C. at  378, 353 S.E.2d at 705 (“Custody is not to be used to penalize
or reward a parent for his or her conduct.”).  In this case, it appears the
family court judge placed an unnecessary emphasis on Mother’s cohabitation. 
After Stepfather’s redirect examination at the merits hearing, the family court
judge questioned Stepfather regarding the relationship he and Mother had with
their next-door neighbors, Charlie and Margie Creech, parents of the Honorable
Wayne M. Creech.  The judge asked, “Do you have anything to do with Judge Creech’s
parents?”  In response to Stepfather’s answer that the Creeches visited quite
often, the judge replied, “I’m surprised to hear that.  Because I wouldn’t think
he would have anything to do with anybody that’s living together without benefit
of marriage as straight-laced as he is and she is and Judge Creech is.  I’m
surprised they would have anything to do without [sic] anybody that’s living
together without the benefit of marriage.”  The judge’s focus on this issue
continued when he questioned Margie Creech:

THE COURT: You gave an affidavit here and [it is] dated August
the 22nd in the year 2000.  If you would have known that [Mother
and Stepfather] were not married, would you have given that affidavit?  Would
you have given them an affidavit that said: How much you enjoyed them as neighbors
. . . .

MARGIE CREECH: Yes, sir, I would have.

THE COURT: Even though they were not married.  They were
living together without the benefit of marriage and they were bringing their
daughter in there, a young child in there?

MARGIE CREECH: Well, I don’t guess that – I’m not down on
anybody because of what they do because, you know, that I don’t agree with it. 
Actually, I pray for them.  So, therefore, they were good parents, so that’s
all I could see is say what I see. 

We disagree with the emphasis placed on
the Mother’s cohabitation prior to her present marriage by the family court
judge and with his finding that her cohabitation was a change in circumstances
sufficient to warrant a change in custody. 

Further, Father’s current living
situation alone, including his remarriage and Grayson’s relationship with Stepmother,
is not sufficient to support a change in custody.  See Fisher v. Miller,
288 S.C. 576, 578, 344 S.E.2d 149, 150 (1986) (stating remarriage alone is not
a substantial change of circumstances).  In this particular case, Grayson has
known both Stepmother and Stepfather since 1997, when both couples began dating. 
Grayson’s relationship with her Stepmother in itself does not substantially
affect her welfare and thus does not qualify as a change in circumstances because
the evidence establishes that both Stepparents had been a positive influence
on her life for over three years prior to the time Father commenced this litigation. 

However, we agree with the family
court judge’s determination that Mother’s unilateral decision to significantly
reduce Father’s visitation was a substantial change in circumstance materially
affecting the best interests and welfare of Grayson.  The original divorce decree
granted the parties joint custody of Grayson and gave Mother primary physical
custody and Father liberal rights of visitation.  The decree did not set forth
any guidelines as to how the parties should determine visitation nor did it
specifically define what liberal visitation would be.  Father exercised liberal
visitation from 1997 to August 2000.  During this time, Mother and Father shared
physical custody of Grayson.  Mother frequently attempted to change Father’s
visitation schedule by reducing Father’s visitation.  On each occasion, the
parties successfully negotiated an alternate visitation schedule, which gave
Father more time with his daughter.  Father testified that he would have to
agree to give Mother more money or take on additional expenses in order to have
more time with Grayson.  However, in August of 2000, Mother phoned Father and
notified him that because Grayson had started elementary school his visitation
would be limited to every other weekend.   Based on the transcript of this conversation,
Mother was unwilling to negotiate with Father regarding this new schedule and
even further reduced Father’s access to Grayson’s extracurricular activities
when he attempted to negotiate additional time with Grayson. 

Mother argues there is no evidence
in the record to show that her proposed visitation change negatively impacted
Grayson.  However, contrary to Mother’s assertion, the requirement that the
party seeking to change custody must show a change of circumstances affecting
the interests and welfare of the child does not require a finding of a present
existing injury to the child.  See Routh v. Routh, 328 S.C. 512,
520, 492 S.E.2d 415, 419 (Ct. App. 1997).  Rather, “[a]n existing unhealthy
environment that is likely to impact on the child in the future, affects the
welfare of the child.”  Id. at 520, 492 S.E.2d at 420.   In this case,
Mother has made repeated attempts to diminish Father’s time with Grayson despite
the decree awarding the parties joint custody and the Father liberal visitation. 
Mother’s final proposal of visitation every other weekend suggested a significant
reduction in the time Grayson had been spending with Father.  It is uncontroverted
that Grayson was thriving under the previous visitation schedule, which allowed
her to see Father nearly fifty percent of the time.  The Mother’s new proposed
visitation schedule provided for visitation with Father only every other weekend
and would significantly limit Father’s ability to be an active and positive
influence in Grayson’s life.  Further, the transcript of the tape recorded telephone
conversation demonstrates that Mother was unwilling to compromise on the issue
and even suggested that Mother retaliated against Father by further reducing
his visitation.  As such, we find Mother’s decision to significantly reduce
Father’s visitation with Grayson substantially affected the welfare and best
interest of the child and constituted a change in circumstance warranting a
change in custody to Father.  See Watson v. Poole, 329 S.C. 232,
239, 495 S.E.2d 236, 240 (Ct. App. 1997) (changing custody to father based in
part on mother’s unwillingness to facilitate the child’s visitation with father
and arbitrarily canceling father’s visitation);  Morehouse v. Morehouse,
317 S.C. 222, 226-27, 452 S.E.2d 632, 634-35 (Ct. App. 1994) (upholding an award
of custody to father where mother was unwilling to encourage a relationship
between the child and father).

II.      Mother’s Visitation

Mother argues the family court erred in
restricting her visitation to every other weekend, alternating holidays, and
one month in the summer.  We agree.

Although we affirm the change in custody
to Father due to Mother’s unilateral decision to alter his visitation, we do
not believe the evidence supports an award of standard visitation to Mother. 
The welfare and best interests of the child are the primary considerations in
determining visitation.  Paparella v. Paparella, 340 S.C. 186, 191, 531
S.E.2d 297, 300 (Ct. App. 2000).  The family court has broad discretion to decide
visitation issues and its decision will not be disturbed on appeal absent an
abuse of discretion.  Id. 

The type of visitation the judge granted
Mother in this case is considered “standard” visitation.  See Woodall
v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 (1996).  Although visitation
tantamount to divided custody is disfavored, in certain circumstances courts
will expand visitation beyond standard.  See id. (stating that
visitation tantamount to divided custody is avoided).  But see
S.C. Code Ann. § 20-7-420(42) (Supp. 2003) (“The family court shall have exclusive
jurisdiction . . . [t]o order joint or divided custody where the court finds
it is in the best interest of the child.”);  Paparella, 340 S.C. at 191,
531 S.E.2d at 300 (finding the evidence did not support an award of standard
visitation to the father and expanding his visitation).  In Paparella,
this court granted additional visitation to the father because he was very involved
in raising his children and the mother testified she thought father should receive
more than just standard visitation.  340 S.C. at 191, 531 S.E.2d at 300.  Similarly,
there is overwhelming evidence in this case, including testimony from all four
parents, teachers, family members, and neighbors showing Grayson was thriving
on the previous visitation schedule, which allowed her to see both parents virtually
equally.  Father testified both parents had been very active in Grayson’s life. 
Father also agreed it was healthy for Grayson to see both of her parents at
her ballgames and dance recitals.  Just as in Paparella, Father stated
he thought Mother should receive more than standard visitation.  He believed
both parents should have “liberal access” to Grayson.  He agreed if he were
in Mother’s position, alternating weekends would not be fair.  Father even agreed
that the standard visitation would be detrimental to Grayson’s well-being and
that all four parents should have equal access to her.  In fact, Father pled,
in the alternative, for a continuation of the joint custody arrangement the
parties had previously enjoyed. 

Mother testified she wanted the visitation
arrangement to go back to the way it was before she changed it, where both Mother
and Father spent equal amounts of time with Grayson.  Mother admitted it was
a mistake for her to change the schedule.  Referring to the every other weekend
visitation schedule, she stated, “I don’t believe it’s healthy for anyone to
be away from their child for that long,” and that standard visitation is not
in Grayson’s best interests. 

In addition to the testimony of family and
friends, the guardian ad litem testified that it would be in Grayson’s best
interests for her to spend time equally at each of her parent’s homes. 

Based on the above, we reverse the family
court’s order granting standard visitation to Mother.  While Father remains
the primary, sole custodian, we find Mother should receive expanded visitation
and remand this issue to the family court to establish a schedule consistent
with this opinion.

III.     Guardian Ad Litem’s Recommendation

          Mother argues the family court erred
in failing to give proper weight to the recommendation of the guardian ad litem
and in failing to consider joint custody as recommended by the guardian ad litem.
[1]   In light of our determination that the family court did not err in
changing custody to Father and our remand of the visitation issue, we need not
reach this argument on appeal.   See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (finding
it unnecessary to review remaining issues when disposition of prior issues are
dispositive).

IV.     Attorney’s Fees

Mother contends the family court erred
in awarding Father $23,469.79 in attorney’s fees.  We agree that this issue
should be remanded for reconsideration by the family court judge in light of
our decision to remand the issue of visitation.

The award of attorney’s fees
is left to the discretion of the family court and will not be disturbed absent
an abuse of discretion.  Smith v. Smith, 308 S.C. 492, 496, 419 S.E.2d
232, 234-35 (Ct. App. 1992).  The court considers the following factors in awarding
attorney’s fees: (1) the beneficial results obtained; (2) the abilities of the
parties to pay; (3) the parties’ respective financial conditions; and (4) the
effect of the attorney’s fees 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) (citing Glasscock
v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991)). 

Because we remand the issue of visitation
in order to give Mother expanded visitation, Father’s beneficial results have
been altered.  Therefore, we remand this issue for a de novo review
by the family court. 

As to Mother’s arguments regarding the
specific hourly rate charged, the hours incurred, or the expert witness fees,
these issues are not preserved.  Mother did not raise any objection to these
issues at trial.  An issue not raised at trial is not properly before an appellate
court.  Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998).  
However, because we are remanding the issue of attorney’s fees de novo,
Mother may raise these issues on remand.

CONCLUSION

We find the family court did not err in finding
a substantial change in circumstances based on Mother’s unilateral decision
to alter Father’s visitation.  However, we find it is in Grayson’s best interests
to spend considerable time with both of her parents.  Therefore, we reverse
the family court’s award of standard visitation to Mother, and remand this issue
for an increase in Mother’s visitation consistent with this opinion.  We also
remand the issue of attorney’s fees.  For the foregoing reasons, the decision
of the family court is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HEARN, C.J., ANDERSON and BEATTY,
J.J., concur.

[1] We note that subsequent to the merits hearing in this case, the South
Carolina General Assembly specifically addressed the role of private guardians
ad litem in family court actions in which custody or visitation of a minor
child is at issue.  See S.C. Code Ann. § 20-7-1545 to – 1557 (Supp.
2003).  In particular, the General Assembly made clear that a guardian may
only be appointed when “the court will likely not be fully informed about
the facts of the case and there is a substantial dispute which necessitates
a guardian ad litem,” and with both of the parties’ consent.  S.C. Code Ann.
§ 20-7-1545 (Supp. 2003).  Additionally, the code provides that a guardian
must not include a recommendation concerning custody in the written report,
nor may the guardian include a recommendation at the merits hearing unless
specifically requested by the court for reasons specifically set forth in
the record.  S.C. Code Ann. § 20-7-1549(A)(6) (Supp. 2003).