As a child custody attorney in Charleston, I’ve dealt with many cases where a client wants to know how to change custody after their divorce. In South Carolina, the family court always has the power to modify a previous court order of custody whether the order is for sole or joint custody. Asking the family court to change custody is different from asking the family court to grant you custody in the first place. In an initial determination of custody, the family court looks to see which is the better (fit) parent by looking at each parent’s strengths and weaknesses (for a comprehensive discussion of child custody in South Carolina, click here). To convince the family court to CHANGE custody, a parent must prove three things:
- A material change in circumstances;
- The material change in circumstances happened AFTER the initial family court custody order; and
- The material change substantially affects the child’s best interests.
When Would the Family Court Modify a Custody Order in South Carolina?
In my experience, it isn’t enough for one parent to show that they’ve become the better parent. For example, a parent may remarry and create a more stable home than the parent who has custody (the custodial parent). In and of itself, remarriage isn’t a basis for changing custody. Also, the fact that parents aren’t getting along with each other after their divorce isn’t a basis for changing custody unless their disagreements are substantially impacted the child’s wellbeing.
Generally, to justify a change of custody, the family court looks to see whether there have been negative changes in the custodial parent’s skills or lifestyle. Here are a few examples of poor parenting or lifestyle choices that may cause the family court to change custody:
- Interfering with the Relationship Between the Child and the Noncustodial Parent. Unfortunately, some custodial parents try to drive a wedge between the child and the other parent. Examples of this include bad-mouthing the other parent in the child’s presence, obstructing visitation and communication between the parent and child, and making false allegations against the other parent to restrict their visitation. Most family court judges will give the custodial parent an opportunity to change their negative behaviors, but if their conduct continues, then the court may change custody.
- Immoral Conduct. The family court will change custody if the custodial parent engages in immoral conduct that impacts the child’s welfare. Examples of immoral conduct include exposing the child to overnight romantic guests, exposing the child to pornography or other age-inappropriate materials or behaviors, drug use, and alcohol abuse.
- Educational Problems. If a child performs poorly at school, and the custodial parent is contributing to the problem or does little to help the child, then the court may change custody. Examples include excessive tardiness or absences from school or failing to get tutoring or other assistance for a child that is struggling with their courses.
- Unstable Home Environment. Many things can negatively impact the stability of a child’s home environment based on the custodial parent’s choices. Examples include excessively moving from home to home, lack of job and income stability, and the custodial parent’s over-dependence on their family for support.
- Poor Parenting Skills. Poor parenting skills come in many forms. Examples include behaviors that keep the child from developing independence, responsibility, or maturity, elevation by the custodial parent of their own happiness over that of their child, and improper or no supervision of the child, and mental or physical abuse of the child.
Can the Court Change Custody If a Parent Moves to Another State?
As South Carolina’s courts have stated, cases involving the relocation of a custodial parent present some of “the knottiest and most disturbing problems that our courts are called upon to resolve.” Years ago, our family courts were guided by the presumption against relocation. These days, the courts struggle to determine what is in the child’s best interest by focusing on various factors including the following:
- Each parent’s reason for seeking or opposing the relocation;
- The relationship between the children and each parent;
- The impact of the relocation on the quality of the children’s future contact with the non-custodial parent;
- The economic, emotional, and educational enhancements of the move;
- The feasibility of preserving the children’s relationship with the non-custodial parent through visitation arrangements; and
- The likelihood the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a whim of the custodial parent.
Should I Fight to Change Custody?
Custody battles are emotionally and financially draining. Before you make your decision, there is one more article that you must read. This article is a rare, inside look at the family court’s view of the challenges any judge faces in deciding custody between parents. You can’t afford to skip this one.