Child custody in South Carolina can arise any time the parents of a child chose to reside apart from one another. Although most often seen in connection with divorce, the Family Law Court also hears custody cases between unmarried individuals who share a child.
SC § 20-3-160 authorizes the Family Law Court to issue custody orders that support “the best spiritual as well as other interests of the children” for their care, custody, and maintenance.
Child Custody Court Factors
South Carolina courts are required to consider specific factors when determining child custody decisions. The judge has considerable leeway to weigh the various aspects below with different weights.
The factor that is most important is the fitness of the parents. There are quite a few factors that are considered when evaluating the fitness of a parent to have custody of a minor child that is covered in this article.
In addition to determining whether each parent is fit, the court must consider the best interest of the child, which may include, but is not limited to:
- 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;
- The preferences of each child;
- 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;
- Actions of each parent that encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
- Any manipulation by, or coercive behavior of the parents, in an effort to 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 his or her home, school, and community environments;
- The stability of the child’s existing and proposed residences;
- The mental and physical health of all individuals involved;
A disability of a proposed custodial parent, 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, 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; and
- Other factors as the court considers it necessary.
The Child’s Preferences
If the child is able to state a custody preference about which parent the child wants to live with or the visitation schedule the child prefers, SC § 63-15-30 encourages the court to weigh the child’s preferences while considering the child’s:
- Ability to express a preference
South Carolina does not have a Tender Years doctrine that gives preference to awarding child custody to the mother during a child’s early years. That law was overturned several years ago.
If there is any evidence of domestic violence, including, but not limited to:
- Physical abuse
- Sexual abuse
- Evidence of which party was the primary aggressor as defined in SC § 16-25-70
SC § 63-15-40 requires the court to consider the reason the parent left the family home, with or without the children, due to violence. The court must not use that as a basis to deny child custody of a minor child to that person if there are no other factors that indicate the person should not have custody. If both parents have committed domestic violence, the one who is not the primary aggressor will be afforded this protection.
When someone has been found guilty of being the primary aggressor of domestic violence, the court may order additional safeguards to protect the children and the victim as outlined below based on SC § 63-15-50:
- The exchange of the child must occur in a setting that protects the victim.
- That visitation must be supervised by another person or an agency.
- As a condition of visitation, the aggressor may be required to attend and complete a program of intervention for offenders or other designated type of counseling.
- That the aggressor abstains from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four hours preceding the visitation.
- Mandate that the aggressor pays a fee to defray the costs of supervised visitation.
- Prohibiting overnight visitation.
- Require the aggressor to post a bond for the return and safety of the child if the person has made a threat to retain the child unlawfully.
- Impose any other condition that is considered necessary to provide for the safety of the child, the victim of domestic violence, and any other household member.
- If a court allows a household member to supervise visitation, the court must establish conditions to be followed during the visitation.
- The judge may prohibit or limit visitation when he or she deems it necessary to ensure the safety of the child or the parent who is a victim of domestic violence.
- The judge may approve a motion that prohibits or limits visitation to ensure the safety of the child or the parent who is a victim of domestic violence.
- If visitation is not allowed or is allowed in a restricted manner, the court may order the address of the child and the victim remain confidential.
- The court may order the aggressor to pay the actual cost of any medical or psychological treatment for a child who is physically or psychologically injured as a result of one or more acts of domestic violence.
- In a small number of cases where the abuse, neglect, or domestic violence has been severe and/or repeated, the court may:
- Deny any access to the child, and/or
- Terminate the person’s parental rights
Communication between Child and Parents
Each parent should facilitate opportunities for reasonable telephonic and electronic communication between the minor child and the other parent when the child is in their custody. The court may make an exception due to abuse, neglect, or abandonment. The court may order minimum telephonic and electronic communications the custodial parent should meet.
The Custody Decision
The court uses the evidence presented to make a custody determination in the best interest of the child. The court will make the determination of whether to award sole or joint child custody. If the parents contest the custody wishes of the other parent, the court will consider all custody options, including but not limited to, joint custody. The final order shall state the type of custody and the reasoning for the court’s decision.
The court may allocate parenting time in the way it believes will serve the best interests of the child.
The court may approve a parenting plan as submitted or modify the plan in ways it believes will be in the best interest of the child.
If joint custody is awarded, the order will speak to the residential living arrangements with each parent.
The order will also address how consultations and communications between the parents will take place, generally and specifically, with regard to major decisions concerning the child’s health, medical and dental care, education, extracurricular activities, and religious training.
The court may order other custody arrangements as the court may determine to be in the best interest of the child. For example, if sole custody is awarded to the father and the child’s maternal grandparents expressed a desire to have visitation with their grandchild, the order may include visitation for the grandparents.
School and Medical Records of the Child
Parents will be granted equal access to obtain all education and medical records relating to their children and to attend and participate in their children’s school and extracurricular activities. An exception may be made when there has been domestic violence. The safety of the victim will be considered and access to activities may be limited or require coordination to comply with any current restraining order.
Being blind does not mean that a parent is deemed unsuitable to be the custodial parent or to be awarded visitation. It may only be considered as far as it relates to the best interests of the child.
Special Rules for Deployed Parents
When a parent who is serving the country as a member of the military is deployed, special military service rules for custody and guardianship apply.
The court is required by law to consider religious faith when placing a child with an individual, a private agency, or an institution. SC § 63-15-20 advises the court to use the following order of priority when it considers placement in support of the child’s religious faith:
- First Priority – if the parents have the same religious faith, an attempt will be made to place a child with someone of the same religious faith as the parents of the child.
- If the parents are not of the same faith, the faith of the child will be given first priority, if it is ascertainable.
- If the child’s faith is not ascertainable, an attempt is made to place the child with someone who shares the faith of one of the child’s parents.
Tax Credits Relating to Children
The court order may determine who is entitled to various tax credits associated with having children in compliance with state and Internal Revenue Service rules, as they may exist from time to time.
The parent who had the children more often should claim the exemption.
Final Custody has been determined
The court will generally indicate that the custodial parent claims the deduction barring compelling reasons to order otherwise. It can be a good idea to consult a tax advisor before the final custody hearing to understand the consequences and suggest an arrangement when the Parenting Plan is submitted.
Child support is awarded based on the following factors:
- Income of each parent
- Type of Custody ordered
- If shared, number of nights each parent has the child each year
- Number of children
- Number of other children being supported by each parent
The court may consider other factors. Additional details about child support in South Carolina and enforcement of child support awards are detailed in other articles on our website.
Non-Traditional Approaches to Becoming Parents
The most common type of situation is one where a couple conceived a child together while in a romantic relationship. Other types of situations can also give rise to a custody fight including couples who informally used a surrogate to father or give birth to a child. One of the most important steps non-traditional parents can take is to understand and manage the risks inherent in their chosen method of creating a family. Our article Turkey Basters and Surrogacy in South Carolina provides risk management strategies to use in a variety of family creation scenarios in South Carolina.
South Carolina § 63-15-220 requires each parent to submit a Parenting Plan to the court reflecting their preferences regarding custody, visitation, and other aspects of how the child will be raised. Custody decisions will not be delayed if a parent fails to submit a Parenting Plan. The Parenting Plan is the method parents use to communicate their wishes to the court for the court’s consideration.
South Carolina Custody Definitions
Joint custody: means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.
Sole custody: means a person, including, but not limited to, a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.