Child custody and alimony are the two most contentious issues in a divorce. This page is to help you understand the South Carolina child custody laws on children and divorce. The decision on custody of the children is one of the most difficult decisions that a South Carolina family court judge has to make. Dividing the marital property can be easy, put everything in the front yard and auction it off and split the money. Dividing up a child or children is not so easy, especially when you have two equally fit parents. Hopefully, this article will give you some insights into how the decision on child custody is made and how judges expect the parents to work together to insure that the rights of all parties are protected. The first thing a parent needs to understand is that the judge is primarily concerned with the best interest of the child, not the best interest of the parents. When it comes to custody, the judge is not concerned with who did what unless it impacts the child. Lets start with an explanation of the types of child custody and the differences. The two major types of custody are legal custody and physical custody. There were some major revisions to the South Carolina law in 2012 so see the explanation below on those changes.
LEGAL CHILD CUSTODY
The legal aspect of custody for children and divorce means decision making and the parental authority and rights of each parent. It means having the legal right to make and participate in any material decisions affecting the children. Included are the choice or change of school, college, camp, or comparable summer activity, special tutoring, music, sports, art, dance, and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; access to school and medical records; and all other material decisions affecting the health, education, and welfare of the children. Specifically, legal child custody is the right of the parent to make decisions regarding educational instruction, religious instruction, health care, discipline, and child care providers for their child, but anything relevant to the children could be included in the definition. Legal custody can be granted to one or both parents, but the overwhelming preference in South Carolina is for joint legal custody. The judge expects each parent to keep the other fully informed and to consult with the other parent in all major decisions effecting the child.
PHYSICAL CHILD CUSTODY
The second aspect of custody for children and divorce that must be determined is physical child custody. Physical custody simply means the right to have actual physical possession of the children at a certain specified time. The preference is for joint physical custody, which only means that both parents have the right to physical possession of the children at certain times. The actual schedule can vary greatly and this is where tailoring to the specific needs of the family is important. Joint physical custody could be an alternate weekend schedule, alternate weeks, holidays and spring break only, summertime only, alternating weeks, reasonable as agreed, or whatever other schedule is appropriate for the case. The primary terms used to describe physical child custody are sole custody, shared custody, primary physical custody and split custody.
SOLE CHILD CUSTODY
This is the alternative to joint custody where only one parent is granted either all of the decision making rights (sole legal custody) or all of the physical parenting time with the other parent being excluded completely (sole physical custody), or both. Courts are reluctant to order either of these options unless it is shown to be in the children’s best interests, which usually means that physical or emotional danger to the children will occur under any other alternative. Even where one parent is judged to be unfit, the judge will usually order at least supervised visitation. Each parent has a Constitution right to have a relationship with their child and judges are very reluctant to totally terminate a parent's rights.
PRIMARY PHYSICAL CHILD CUSTODY
This is the residential address of the child for educational, tax and mailing purposes. It means the home where the child resides for the greater amount of time and the home that is in the child’s school district. The typical designation is the custodial parent and the non custodial parent and is the legal preference for child custody in South Carolina. One parent will be awarded primary physical custody and the other parent will be awarded a set visitation schedule and each county has a set “standard”. The typical standard is that the non custodial parent will have custody of the child every other weekend from 6 pm on Friday until 6 pm on Sunday, one evening every week and split time for holiday and school vacation periods.
This is an arrangement where the children are “split up” between the two parents, meaning that some of the children reside with one parent while the other children reside with the other parent. This is not too common, but it does happen. Courts are usually reluctant to split up children except in the most unique of circumstances, but the parents can agree to such an arrangement if they feel it is best.
SHARED CUSTODY or JOINT CUSTODY
This is an arrangement where the child is “shared” between the two parents, meaning that the child resides with one parent for half of the time and the other parent for the other half and this is often termed joint custody in South Carolina. This is not the preference in South Carolina since the courts feel that it is important for the child to have stability rather than being shifted from place to place. Where the custody is shared, the usual schedule is weekly with the exchange being made a 6 pm on Sunday with no allowances for holidays except Christmas.
"This Court has repeatedly held that joint custody is to be avoided if at all possible and will be approved only under exceptional circumstances. Avin v. Avin, 272 S.C. 514, 252 S.E.2d 888 (1979); Sharpe v. Sharpe, 256 S.C. 517, 183 S.E.2d 325 (1971); Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969); see also Courie v. Courie, 288 S.C. 163, 341 S.E.2d 646 (Ct.App. 1986)."
However, if the parents agree on joint custody, the court will usually approve the agreement.
NOTE: The South Carolina Legislature has passed a new law strengthening the rights of a father to joint custody. It is yet to been seen how this will actually play out in the family court but it is a major shift in the determination of child custody in a contested case. See the full discussion of the new law below.
As in all states, the legal standard for a decision on child custody is the best interests of the child. The family courts feel that the parents are the ones best suited to determine child custody issues and strongly encourage the parties to develop a parenting plan between themselves. When the parents cannot agree, either party may petition the family court for a determination. In all custody controversies, the controlling considerations are the child's welfare and best interests. In reaching a determination as to child custody, the family court will consider how the custody decision will impact all areas of the child's life, including physical, psychological, spiritual, educational, familial, emotional, and recreational aspects. Additionally, the court must assess each party's character, fitness, and attitude as they impact the child.
When determining the best interests of a child the South Carolina family court will consider several factors, including: who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties such as the guardian ad litem, expert witnesses, and the children; and the age, health, and sex of the children. The court may consider the child's reasonable preference for custody. The court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference. Usually the child will need to be at least twelve years old before the court will consider the child's preference. However, this is only one factor in the decision and south Carolina does not allow a child to decide custody. The court will also consider evidence of domestic violence, the current situation and nature of the divorce, and the religious faith of the parents. The court will not award custody based upon the gender of the parent. (Code of Laws for South Carolina - Chapter 3; Sections 20-3-160, 20-7-100, 20-7-1520)
South Carolina has abolished the "tender years" doctrine. What this means is that there is no automatic preference by the Judge for the mother over the father even when a child is very young. Rather, the preference is now the party that has been the "primary caretaker" of the child. This preference results in the mother usually being awarded primary physical custody of the child and the father standard visitation. However, the South Carolina courts will award a father custody in appropriate cases.
"The record before this Court reflects, not a gender bias against Mother or the fact that she is a career-oriented woman but, rather, a case in which, as between two parents who are fit to be the custodial parent, the best interests of the child will be served by awarding custody of the child to Father. The preponderance of the evidence clearly supports the Family Court's ruling and, accordingly, we affirm the award of custody to Father."
Your child custody attorney is your advocate to express your side and to present your facts and arguments as to why you should be awarded custody of your child. It is your responsibility to provide the proper ammunition the lawyer needs to persuade the family court in your favor. Providing your attorney with too little to go on or a weak case to base an adequate defense and you will lose even with the best attorney in the world. It is necessary to present a well thought out and persuasive child custody case to the judge. It’s your responsibility to provide your attorney and the GAL with relevant persuasive arguments and facts. Nobody knows the facts as well as you and it's up to you to provide your attorney with any and all facts in your favor. The attorney is not an investigator, that is your role.
In the landmark opinion, Patel v. Patel, 347 S.C. 281, 555 S.E.2d 386 (2001), our supreme court reviewed the historical development of the role of the GAL in South Carolina:
A guardian ad litem, as the later phrase suggests, is a guardian for litigation. Traditionally, GALs were lawyers appointed by the court to appear in a lawsuit on behalf of a minor or incompetent. Over time, the role of the guardian was defined by statute as well as by common law. Lay persons as well as lawyers were appointed by the court in cases to protect those the court or legislature deemed could not protect themselves....
The GAL functions as a representative of the court, appointed to assist the court in making its determination of custody by advocating for the best interest of the children and providing the court with an objective view. Fleming v. Asbill, 326 S.C. 49, 483 S.E.2d 751 (1997); Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996). Standard setting for GALs in this "new" role has been very ad hoc. The legislature has set standards for a GAL appointed in abuse and neglect cases. However, there has been no comprehensive or coherent approach for the setting of standards for the use of GALs in private custody disputes....
Patel at 287-88, 555 S.E.2d at 389 (footnote omitted). Due to the new role guardians play, and "[w]hile a more complete approach [was] being examined by the three branches of government," the Patel court "set forth some base line standards":
In connection with developing a recommendation to the family court, a GAL shall: (1) conduct an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family, which should include: reviewing relevant documents; meeting with and observing the child in the home setting and considering the child's wishes, if appropriate; and interviewing parents, caregivers, and others with knowledge relevant to the case; (2) advocate for the child's best interest by making specific and clear recommendations, when necessary, for evaluation, services, and treatment for the child and the child's family; (3) attend all court hearings and provide accurate, current information directly to the court; (4) maintain a complete file with notes rather than relying upon court files; and (5) present to the court and all other parties clear and comprehensive written reports, including but not limited to a final report regarding the child's best interest, which includes conclusions and recommendations and the facts upon which the reports are based....
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One of the most frequent searches on the Internet on family law issues is the question: "At what age can the child decide where he/she will live?" The answer in South Carolina is that the child can decide at age 18. When the child legally becomes an adult, the court no longer has control over the child. Until then, only the judge ultimately decides.
There are, however, several ways for the child to have some influence.
The child can talk to the parents about the decision. As much as I don't like involving children in these decisions, sometimes a child is mature and has a reasonable basis for a change in living arrangements. What's potentially damaging is for a parent to want a change of custody and then recruit the child to become an advocate. That should be avoided. Sometimes parents try to act like the request originated with the child, but it usually doesn't. Another bad situation is when a child works the parents against each other.
A study can be done for the court. The GAL can interview the child and evaluate the what the child has to say. The GAL ultimately makes a recommendation from all the information gathered from a variety of sources.
An attorney can be appointed to represent the child in some cases, but the attorney isn't free. The parties have to come up with the funds to pay the attorney, in addition to paying their own attorney.
Sometimes, a court will appoint a psychologist to interview or work with a child. That gives the child an outlet, but it's not free either.
In a contested South Carolina divorce or custody case, or for visitation issues, the court mediation is mandatory. That is a pretty effective process that has the two parents meet with a mediator to discuss and try to resolve custody or visitation issues. Again, it is not free.
The child may be permitted to visit with the judge in chambers and discuss the situation without the parents and attorneys being present, but the judge will always make the ultimate decision. Most judges are experienced enough to detect when a child has been programmed or when a child is trying to manipulate the situation. There is no guaranteed result when a child actually gets into a one-on-one with the judge. Nevertheless, the judge can gain some valuable insight into the family by an interview with a child in chambers.
Bottom line is that if the parties cannot agree, the judge will decide with the best interests of the child being the guidepost.
Here are some of the elements a judge may consider in deciding a child custody case.
Primary caregiver. In South Carolina there is a presumption that the party that has been the primary caregiver of the child should be awarded primary physical custody.
Drug Abuse. It is fairly standard for the judge to order that both parties take a hair strand drug test and submit it to the court. Parents who abuse drugs or alcohol will not be awarded custody.
Wishes of the child. The judge may take the wishes of the child into consideration. While this is just one element, the older the child the more weight the judge is likley to give to the child's wishes.
Past custody. Who has historically had custody of the child and has that party provided a safe and stable environment for the child.
Parental behavior. Has there been domestic violence, excessive use of alcohol, criminal convictions, parental kidnapping, or any behavior that endangered the child
Encourages a relationship with other parent. Which parent will best foster a relationship between the child and the other parent. Has one parent withheld visitation to “punish” the other parent or made derogatory comments about the other parent.
Home Environment. Which parent offers the child the best stable home environment. This includes who can best supervise the child at home, the living conditions, what other adults and children, especially siblings, are in the home, the neighborhood where the home is located, which parent will be able to better continue the same school and friends.
Employment. Which parent is better able to financially provide for the child. If the parent works, what arrangements are there for babysitters, day care, etc. Does one parent travel.
Relatives. Does one parent have relatives that have a close relationship with the child.
Health. Does the child or a parent have any health issues that would impact the decision on custody. Which parent normally makes doctor appointments and accompanies the child to those appointments.
Religion. Which parent will expose the child to spiritual guidance and growth.
Relationship with child: The love, affection and emotional ties between the parent and child. With which parent does the child bond more, spends more time with the child, bathes and puts a young child to bed, prepares the child's meals and to which parent does the child openly show signs of affection.
Character. The judge will have to evaluate in a short period of time the character of the parties and whether one parents morality and credibility makes them the best parent to award custody.
The paramount and controlling factor in every custody dispute is the best interests of the child. Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999)
In determining custody, the family court "must consider the character, fitness, attitude, and inclinations on the part of each parent as they impact the child[ren]." Woodall, 322 S.C. at 11, 471 S.E.2d at 157. Because all relevant factors must be taken into consideration, the court should also review the "psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects" of each child's life. Id. In other words, the totality of circumstances unique to each particular case "constitutes the only scale upon which the ultimate decision can be weighed." Parris v. Parris, 319 S.C. 308, 310, 460 S.E.2d 571, 572 (1995).
"In South Carolina, in custody matters, the father and mother are in parity as to entitlement to the custody of a child. When analyzing the right to custody as between a father and mother, equanimity is mandated. We place our approbation upon the rule that in South Carolina, there is no preference given to the father or mother in regard to the custody of the child. The parents stand in perfect equipoise as the custody analysis begins." Clark v. Clark
A South Carolina Family Law Attorney can assist you if you have questions about custody in South Carolina. The attorney can review the facts of your case and advise you on your rights under the law.
For a Divorce lawyer in Greenville, Spartanburg, Laurens or Pickens County call
Greenville Divorce Attorney
Pickens Divorce Attorney
Wayne Patterson, Attorney at Law
10 Century Dr. Suite B
Greenville, SC 29607
Wayne is a Greenville family law attorney including probate, elder law, trusts, child custody, special needs trusts and South Carolina divorce.
NOTICE !!! ONLY AN ATTORNEY LICENSED IN YOUR STATE CAN PROVIDE YOU WITH LEGAL ADVICE
Each South Carolina Family Court has a child custody standard visitation schedule for the non custodial parent. In most cases involving South Carolina custody one parent will have primary residential custody and the other parent will have standard visitation. Click on the link below for one common standard visitation order used in many South Carolina family courts. There are many variations in setting visitation and the judge will encourage the parties to reach an agreement that is in the best interests of the child.
In South Carolina the family court does recognize that grandparent's have a special relationship to their grandchildren and in certain cases will award grandparent child custody or visitation. However, there does have to be extenuating circumstances to justify such an order. Here is an article that explains the law in South Carolina as to grandparent's rights to child custody.
In 2012 the South Carolina Legislature passed a significant change in the child custody law. That legislation has codified by statute what had before been set out mainly in case law. One of the most significant changes is a requirement that the judge must consider joint custody, previously called shared custody, in contested cases. This change reflects a significant shift in South Carolina towards recognizing the rights of fathers to have equal time with their children. It also sets out specific factors that a judge must consider in deciding child custody as follows:
(1) the temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) the preferences of each child;
(4) the wishes of the parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
(6) the actions of each parent to encourage the continuing parent child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
(8) any effort by one parent to disparage the other parent in front of the child;
(9) the ability of each parent to be actively involved in the life of the child;
(10) the child’s adjustment to his or her home, school, and community environments;
(11) the stability of the child’s existing and proposed residences;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
(13) the child’s cultural and spiritual background;
(14) whether the child or a sibling of the child has been abused or neglected;
(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
(16) whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and
(17) other factors as the court considers necessary
Another major change is the requirement that each party in a contested child custody action submit a proposed parenting plan to the court.
However, a recent Count of Appeals decision reversed the award of joint custody.
Burgess v. Arnold (S.C. App., 2018)
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