If you’re getting a divorce and have minor children, you’ll need to address how each parent will be involved in their lives going forward. You’ll have to make several important decisions, and the better prepared you are, the smoother the process can be.
In this guide, I’ll break down the child custody process from start to finish. Let’s dive in.
- Types of Child Custody in South Carolina
- How is Child Custody Determined in South Carolina?
- What is The Best Interests of the Child Standard?
- What is a Parenting Plan?
- Modifying a South Carolina Custody Order
- South Carolina Child Custody FAQs
Types of Child Custody in South Carolina
There are two types of custody in South Carolina.
Physical Custody
Physical custody means who the child lives with the majority of the time.
The parent with physical custody is called the “custodial parent,” and the other parent who does not have physical custody is called the “non-custodial parent.”
When one parent has physical custody, the other will have regular visitation rights.
Visitation could be unsupervised overnight visits at the non-custodial parent’s home without extenuating circumstances. However, it could mean supervised visits at the custodial parent’s home or another family member’s house. Visitation could be denied when a parent is deemed unfit, or visitation would put a child in danger. That may be the case if the parent has committed domestic violence, drug or alcohol abuse, or other similar negative issues.
Legal Custody
Legal custody means a parent has the right to decide about their child’s life on essential matters such as healthcare, education, and religious or spiritual issues.
Sole Custody and Joint Custody
Physical and legal custody can be granted to one parent (sole custody) or shared by both parents (joint custody).
Courts prefer an ongoing and healthy dialog between children and their parents, so joint custody is preferred when possible. In some cases, this isn’t practical, and it may be more efficient to grant sole custody instead.
The most common arrangement involves one parent taking sole physical custody while the other has regular visitation. This may be encouraged because it provides more stability for the child rather than shuttling them back and forth between two homes every other week or month.
Joint legal custody means both parents have equal rights and responsibilities for major decisions concerning the child. However, these rights and responsibilities may be divided so that each parent has final authority over specific parts of a child’s life. Each case is unique, so there is no formula or specific guidelines to address this issue.
Unless there are reasons it would harm the child, both parents have a right to be involved in their child’s life and influence their child’s upbringing.
How is Child Custody Determined in South Carolina?
A South Carolina family court judge has exclusive jurisdiction in many child custody matters, including:
- Matters that are part of the provisions of the Uniform Interstate Family Support Act
- To determine actions for divorce, separate support, separation, and any other marital litigation between parties involved
- Actions related to the adoption of children and adults
- To determine steps for termination of parental rights
- Marriage annulments
- Plans for changing names
- Corrections of birth records
- To consent to the enlistment of a minor in the military service or the employment of a minor
- To hear and determine proceedings within the county to compel the support of a spouse or minor child, whether legitimate or illegitimate
- Actions related to the protection of neglected or dependent minors in cases brought before in the subject of support
- To order support of a spouse or a child and include requirements of an order to support the providing of proper and reasonable care
- To make support orders remain in force until further order of the court, except for when the child becomes self-supporting, reaches a certain age, gets married, and other such circumstances.
The Division of Child Support Enforcement of the State Department of Social Services also has jurisdiction to order joint or divided custody where the court finds it is in the child’s best interests.
South Carolina child custody laws have no presumption favoring mothers over fathers or fathers over mothers in child custody cases. All decisions are gender-neutral.
Under South Carolina statutes, the mother and father are the joint natural guardians of their minor children. They are equally charged with their minor children’s care, welfare, and education and have equal power, rights, and duties.
Each parent also has equal access, the same right to obtain all educational and medical records of their minor children, and the right to participate in their child’s school activities unless prohibited by a court order.
In a divorce, either parent can petition a family court for custody rights. Courts prefer that parents reach a child’s custody agreement on their own. However, when this is not possible, courts usually step in and decide custody matters instead.
Sometimes, parents will be urged to try mediation to find collaborative ways to resolve their differences. A third party will oversee non-binding negotiations that can help resolve problem areas between the parents instead of having those issues decided by a judge.
Read More: Divorce Litigation: When is it necessary, and how does it work?
What if a child is born out of wedlock?
According to S.C. Code §63-17-20(B), custody of an illegitimate child is given solely to the natural mother unless the mother has relinquished her rights to the child.
If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody.
If paternity has not been established, a purported father can seek paternity verification through a parental acknowledgment signed by both parents or through DNA testing presented to the court.
What is the role of a Guardian ad Litem?
In a contested child custody proceeding, the family court will usually appoint a guardian ad litem (GAL) at the first temporary hearing. The GAL formally acts as the child’s representative and advocates the child’s best interests. They do not represent the parent’s best interests.
Often the guardian is an attorney, but not always, and has experience with children. The guardian will investigate aspects of the child’s life, gather evidence, interview the parents and their witnesses, take part in negotiations, and may observe the child with each parent and in each parent’s home. When the guardian ad litem has finished their work, they file a report with the parents and the court that becomes part of the overall decision-making process.
The judge decides who pays for the GAL’s services. Usually, each parent is responsible for half of the GAL’s total costs, including the GAL’s time and investigation costs.
What is “The Best Interests of the Child” Standard?
All custody decisions in South Carolina are based on what is in the best interests of the child. To help courts determine exactly what that is in each case, S.C. Code § 63-15-240(B) sets forth criteria the court should consider in deciding custody. Those factors are:
- The temperament and developmental needs of the child
- The capacity and the disposition of the parents to understand and meet the needs of the child
- Each child’s preferences
- The wishes of the parents as to custody
- 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
- 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
- Parents’ manipulation or coercive behavior to try and involve the child in the parents’ dispute
- Any effort by one parent to disparage the other parent in front of the child
- The ability of each parent to be actively involved in the life of the child
- The child’s adjustment to their home, school, and community environments
- The stability of the child’s existing and proposed residences
- The mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or another 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
- The child’s cultural and spiritual background
- Whether the child or a sibling of the child has been abused or neglected
- 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
- 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
- Other factors the court considers necessary.
What is a Parenting Plan?
Each parent is entitled to visits (parenting time) with their child regardless of whether that parent has legal or physical custody. South Carolina mandates that a noncustodial parent receive a minimum amount of visitation unless that parent’s parental rights have been terminated.
Generally, minimum visitation grants a parent one weeknight and overnight visits every other weekend. A judge may order more than the minimum amount of visitation, but not less.
To codify this and all other custody issues, parenting plans are developed that provide specific details on all parts of a child’s life relating to relationships, rights, and responsibilities with each parent.
Parents can attempt to reach their own custody agreements as long as the terms serve a child’s best interests. Some couples also enlist the help of a mediator to reach a custody agreement. Parents often can’t reach an agreement, and when that happens, the family court will step in and create a binding parenting plan to address all key issues.
Regardless of who creates the document, a judge will review it to ensure it meets a child’s needs. If it does, the judge will approve it, becoming an official court order.
Modifying a South Carolina Custody Order
Life circumstances can change; if the changes are significant enough, they can also affect child custody.
South Carolina keeps custody orders in force until a child turns 18 and graduates high school, is emancipated, or the order is modified. Custody orders are legally binding documents and must be followed until one of these three things takes place.
Either parent can file a request to modify custody. The parent seeking to change custody must prove that there’s been a material change in circumstances and that a change in custody is necessary for a child’s best interests.
Changes that may rise to the level of justifying a modification are a job change, a distant move, evidence of abuse or neglect, health issues, or other considerable challenges.
Parents can agree that a modification is in the child’s best interests, making a court review much more straightforward. When parents don’t approve, the family court will hold a hearing, listen to evidence, and then rule on the matter.
Read More: How Does a Supervised Visitation Order Work?
South Carolina Child Custody FAQs
How does a family law court decide on relocation matters?
Custodial parents have the right to relocate with their minor children in South Carolina without a court order, but planning to move out of state requires permission from the other parent and a judge. If the noncustodial parent disapproves of the potential move, they can ask the court to deny the request.
Each parent must present evidence at a hearing to prove why the child should remain in the current area or be allowed to move. The custodial parent must show the potential benefits of relocation, such as a better job, better academic opportunities, or more family support that will lead to a better quality of life for the child.
Judges must also weigh how a move will impact visitation options, so the child maintains an ongoing relationship with the noncustodial parent.
If relocation is approved, a new visitation schedule will be given to the noncustodial parent.
Do grandparents or other third parties have custody rights in South Carolina?
There are four circumstances when a South Carolina family court can award visitation to third parties:
Grandparent visitation. The family court cannot award this kind of visitation when the child’s parents live together. A grandparent must wait until they have been denied visitation for ninety days before seeking court intervention. A child visitation lawyer can help the grandparent demonstrate that the parent is unfit. The grandparent must also show that visitation will not interfere with the parent-child relationship.
Sibling visitation. This statute can be applied when an adult sibling wants to maintain a relationship with a younger sibling over the parents’ objection or when a half-sibling seeks to maintain a relationship with a sibling raised by a parent to whom they are not related.
De facto custodians. A person becomes a de facto custodian by acting as the primary caretaker for a child, with the parent’s consent, for six months or more when the child is under three years old or for one year or longer when the child is three or older. Specific custody laws and limitations apply, and it may be prudent to engage an experienced family law attorney to assist if you want to explore this option.
Psychological parents. South Carolina family law recognizes the concept of psychological parents, but there is little case law on this, so it is impossible to determine the boundaries of the doctrine.
How do a child’s wishes impact custody arrangements in South Carolina?
A judge will consider a child’s preference when determining which parent wins custody and under what terms. Older children are given more credence than younger ones, but in all cases, the judge will have the final say in determining custody.
Does one parent still need to pay child support if both parents share custody?
Probably so. Support is determined by each parent’s gross income, which is factored into the state’s child support guidelines to determine the appropriate financial obligations. Shared parenting arrangements that include joint physical custody do not negate child support obligations between parents.
