For over 20 years, I’ve been a child custody lawyer in Charleston, South Carolina. I wrote the article to give parents a comprehensive understanding about child custody in South Carolina. I explain the types of custody in South Carolina, the factors the family court considers when deciding custody, how to convince the court should you should be awarded custody, the role of a guardian ad litem in a custody battle, and how you should deal with your children and your spouse when you are involved in a custody dispute.
If you are looking for information on how to change custody in South Carolina, then you need to read our article on changing custody by clicking here.
What Are The Types of Child Custody Arrangements in South Carolina?
Essentially, there are two types of child custody in South Carolina – sole and joint:
Sole Custody – Sole custody, which was favored under prior South Carolina case-law, is when a parent “has temporary or permanent custody of a child and . . . the rights and responsibilities for major decisions concerning the child, including . . . education, medical and dental care, extracurricular activities, and religious training.”
Joint Custody – Joint custody means both parents have equal rights and responsibilities for major decisions concerning the child. South Carolina law requires that the family court “consider all custody options, including, but not limited to, joint custody” in contested custody cases or if either parent requests joint custody.
What Does the Family Court Consider When Awarding Custody in South Carolina?
In the court’s final order concerning custody,the court must explain its reason for awarding, or not awarding, joint custody. In its reasoning, the court may consider the following factors:
- 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;
- 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;
- The 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, 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;
- 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; and
- Other factors as the court considers necessary
Regarding “other factors,” the court may consider the opinions of others such as social service agencies, doctors and other medical providers, psychologists, and psychiatrists to name a few.
A family court judge is required to consider the children’s preference for custody. Contrary to popular belief, there is no specific age when a child may somehow decide where the child should live. The greater the child’s age, experience, maturity, and judgment, the more likely the child’s preference will have some impact on the family court’s decision.
Years ago, the family court oftentimes gave mothers the custody of their young children. This was known at the “Tender Years Doctrine.” In South Carolina, since 1995, the Tender Years Doctrine can no longer be considered in deciding child custody cases, and both mother and father are considered to be equally capable for caring for an infant or young child unless the court is shown otherwise. Regarding health, the family court may consider whether the child has any special needs and which parent is more able to meet those needs. Lastly, the court may consider the impact a parent’s gender may have, in relation to the child’s gender, on rearing the child.
What is a Guardian Ad Litem’s Role in a Custody Battle in South Carolina?
Whenever there is a dispute between parents over a child’s custody, the family court appoints a guardian ad litem to become involved in the case. In South Carolina, a guardian ad litem (GAL) is a formal advocate for a child involved in a court proceeding such as family court. Although the GAL generally is appointed in the beginning of a case, the court can appoint a GAL any time in the legal proceeding when the best interests of the children are at issue.
- The Guardian Ad Litem’s Job – The guardian ad litem’s job is to impartially investigate matters concerning the child and to communicate to the court about a child’s welfare and about what would be in the child’s best interest. The GAL will investigate the facts, participate in negotiations, and take a position in court as to the child’s welfare. The GAL also may become involved in the financial issues of a case when those issues affect the children.
- Investigation by the Guardian – In the investigation, the GAL interviews the parties in the case, reviews the paperwork filed with the court (the pleadings), visits the child’s home or proposed home, interviews the child, and interviews other witnesses. The GAL may also review relevant records, such as school, medical, or mental health records. The GAL may ask other experts, such as a social worker or a psychologist, to provide input and possible future testimony regarding the case. If there are problems with alcohol or drugs, the GAL may ask the judge to order a parent to have screening tests.
- Recommendations by the Guardian – The GAL may make recommendations to the court to help the child’s welfare and to protect the child from some of the conflict that may arise between the parties such as between divorcing parents. The GAL also helps the child understand the court process and the role of every person in the courtroom such as the judge, the bailiffs, the court reporter, and the attorneys. In investigating and developing input for the court’s consideration, the GAL may consider the child’s wishes, the wishes of both parents, the child’s interaction and relationship with family members, the child’s adjustment to home, school, religion, and community, the child’s age and developmental and educational needs at various ages, the mental or physical health of a parent, the child, or other person living in the proposed custodial household, the cooperation and the communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other, a parent’s likelihood to interfere in the other parent’s continuing relationship with the child, any physical abuse or problems with alcohol or drugs, and other significant factors that would affect the child’s well-being.
- The Guardian’s Preliminary Report – After the investigation, the GAL will give the parents and their attorneys a preliminary summary report of what the GAL will present to the judge. Later, the report could change depending on additional evidence or facts that are uncovered. Afterward, if the parents cannot agree as to how to settle their dispute, the case is prepared for trial before the judge, who will make the final decision.
- The Guardian’s Fees – The judge decides who pays for the GAL’s services. Oftentimes, each parent is responsible for one-half of the GAL’s total costs, including the GAL’s time and investigation costs, such as tests and experts. The court also may require the parents to pay an initial deposit and periodic payments to the GAL during the case.
How Can I Get Custody of My Children in South Carolina?
If you are trying to get custody of your child in South Carolina, you should know that the family court’s decision rests on what is in the “best interest of the child.” In determining who should have custody or whether the parents should share joint custody, the family court carefully scrutinizes each parent’s behaviors both before and after separation. Essentially, if you are seeking custody in South Carolina of your child or children, you must convince the family court of your strengths as a parent and, in some cases, the other parent’s weaknesses.
Parenting Strengths – Here are some of the factors the family court consider’s to be strengths regarding your parenting abilities:
- Primary Caregiver – The family court will consider which parent has traditionally been the primary caregiver to the children.
- Good Parenting Skills – Good parenting skills include consistency and fairness in discipline, teaching independence, establishing family routines such as meals and study times, setting good examples, teaching respect for other adults and authority, stressing the importance of education, showing affection, being involved with school and extracurricular activities, planning good nutrition, reading together, providing regular medical and dental care, and other skills.
- Financial Resources – Greater financial ability to provide for the children can be a very important factor considered by the family court.
- Religious Training – The family court may consider which parent supports and fosters a religious upbringing for the children.
- Parents’ Time for the Children – The family court oftentimes considers which parent will have more time available to spend with the children.
- Stable Home Environment – The family court will consider which parent provides a more stable and consistent home environment.
- Extended Family – The family court may look with favor upon the availability of relatives to help care for the children unless it appears that the involvement of relatives is too much.
Parenting Weaknesses – Here are some of the factors the family court consider’s to be weaknesses regarding your parenting abilities:
- Parent’s Unfitness – Some of the specific things that tend to show unfitness are drug and alcohol abuse; emotional and mental instability; and immoral conduct such as exposing the children to an adulterous relationship.
- Parental Alienation – The family court will consider whether a parent is making attempts to damage the children’s relationships with the other parent. Such attempts typically include making negative comments to the children about the parent and interfering with the children’s ability to communicate with and to spend time with the other parent.
- Domestic Violence – Under the South Carolina law, a family court judge must consider evidence of domestic violence in deciding which parent should have custody.
How Should I Treat My Children and My Spouse if I Want Sole or Joint Custody of My Children?
This next section is VERY IMPORTANT. As a divorce lawyer in Charleston, I know that divorces can be an intensely stressful experience for any child, regardless of the child’s age or developmental level. Whether a child will be traumatized by a divorce depends not only on the child’s resiliency, but also on the environment created by the divorcing parents. The family court knows all of this too. In a custody case, the family court pays very close attention to how each parent treats their children and the other spouse during the divorce. Considering that the family court focuses on what is in the children’s best interests, this section lays out precisely what you should and shouldn’t do during your custody case. If you follow these tips, you can’t go wrong either with your children or with the family court.
First, you need to recognize that children in divorced families typically experience several losses such as the loss of the parent who left the home. Just like the adults, the children feel the financial loss. Many children lose their sense of security due to the many changes that come with divorce such as moving into another home, perhaps attending a new school, and new routines and schedules to accommodate visitation. In hostile divorces, especially those involving custody issues, the psychological effects of divorce on children tend to be more extreme, and these children may suffer from a variety of psychological problems like increased moodiness, panic, denial, guilt, low self-esteem, physical problems, depression, anger, sleeping or eating problems, drug or alcohol use, or even criminal behavior.
Second, you need to follow these guidelines to decrease the impact on your children:
- Don’t treat your children as adults – Some parents believe that their children must “grow up” quicker because of the divorce. Unfortunately, just because some parents treat their children like adults does not mean that their children are emotionally or intellectually equipped to deal with adult issues. Let children be children.
- Don’t rely on your children for your emotional support – Although it may seem natural to turn to your children for comfort during an emotional time, you are likely to cause greater instability and more pressure on the children. Some children begin to feel responsible for their parent’s emotional well-being, whereas some children suffer other emotional side-effects such as increased anger or depression. If you need emotional support, turn to another family member or a friend instead.
- Don’t bad-mouth the other parent, the other parent’s relatives, or the other parent’s friends – Whether you dislike these people or even have good reason to feel resentment, oftentimes your children have other feelings towards them, especially the other parent. When you talk poorly about others that are loved by your children, you create conflict within your child that may result in your child feeling protective about these other persons and resenting you for making negative comments about them. Let your children feel free to love the other parent, their grandparents, and others.
- Don’t blame the other parent for the divorce or for bad things that happen in your life – Doing so goes hand-in-hand with not bad-mouthing the other parent.
- Don’t talk about money or child support – Financial issues are “grown-up” issues. Plus, talking about child support, etc. has a tendency to make children feel less like people and more like possessions with costs attached to them.
- Don’t talk about the “divorce” or other grown up stuff – This issue ties in with not treating your children as adults.
- Don’t send your children on a “guilt trip” for enjoying time with the other parent – Similar to not bad-mouthing the other parent, guilt-tripping your child creates much of the same conflict.
- Don’t block visitation or prevent your children from speaking to the other parent – There are many psychological studies illustrating the benefits children reap from spending time with both parents. No matter how you feel about your former spouse, don’t deprive your children of having a healthy relationship with the other parent.
- Don’t interrupt your children’s time with the other parent by calling too much or planning activities during their time together – At some point, if these interruptions are combined with other actions such as poor-mouthing the other parent and blocking visitation and communications, then the children may be abused (brainwashed) into thinking the other parent is the enemy. Taken together, such actions are known as Parental Alienation Syndrome (PAS). PAS can cause significant and long-lasting psychological and emotional harm to the children.
- Don’t argue with the other parent in your children’s presence – As simple as this advice may sound, so many parents tend to argue in their children’s presence. These arguments cause a tremendous amount of emotional stress for the children and teach the children to resolve their conflicts by arguing too.
- Don’t ask your children to spy on the other parent or report back to you – Children in divorce already may be experiencing conflict in their loyalties and feelings toward both parents. Asking children to spy or to report places the children in an extremely awkward and emotionally stressful position of pleasing one parent while betraying another.
- Don’t ask your children to keep secrets from the other parent – Dividing a child’s loyalty between parents’ places them under extreme stress. Further, the child is learning to become manipulative and may later play one parent against the other using lies and secrets.
- Don’t ask questions about your children’s time with the other parent or the other parent’s life– This is similar to spying and reporting on the other parent.
- Don’t use your children to deliver messages to the other parent – This puts the children in the middle.
- Realize that your children have two homes and not one – Try to understand, and accommodate, the fact that your children will be living in both parents’ homes from time to time, and that your children’s lives are not identical in both homes.
- Allow your children to take items such as their toys back and forth between homes as long as they can carry them – Oftentimes parents are reluctant to allow toys, books, and other items to go to the other parent’s home because these items may not be returned. Think of these items as the children’s things, not yours, and let your children have a sense of continuity by taking familiar and comforting items such as toys back and forth between homes.
- At the moment of transition, be organized and make goodbye brief, warm, and loving, not long, sad, and languishing – During visitation exchanges, do not make the moment of transition highly dramatic and, consequently, traumatic for your children.
- Reassure your children that the divorce was not their fault and that they will be safe – Some children believe that they are the cause of the divorce, and the many losses children experience leave them feeling unsafe. They need reassurance from you.
- Create a stable routine and give appropriate discipline – Especially at the first stages, the changes and losses that come with divorce may cause some chaos. Also, many parents feel sorry for their children and begin relaxing their discipline. Your children are going through enough changes already, and they will benefit more by being consistent.
- Give your children ample advance notice of changes whenever possible – Some parents would rather tell their children about these changes at the last-minute because these parents believe the children are better off not worrying ahead of time. However, your children are likely to be “shell-shocked” from all of the major life changes that stem from a divorce. If further changes are on the way, such as moving or changes in visitation, giving them a “head’s up” gives them a chance to prepare mentally and emotionally for what is to come.
- Don’t ignore the other parent or sit on the opposite side of the room during special events involving your children such as athletic matches, school plays, etc. – As emotionally difficult as it may be for you to be that close to the other parent, it is more difficult for your children to see parents distance themselves at these times. Overall, it is a small sacrifice to make for your children’s emotional wellbeing.
- Support your children’s relationship with their other parent – By supporting the other relationship, you are creating security and stability for your children.
- Ignore (rather than arguing back) when the other parent tries to tell you how to parent – This argument is one that no one can win.
- Accept that there is more than one “right way” to parent and support different parenting styles – Even if you had not divorced, chances are that you and your former spouse may have or would have parented in your unique styles. If you can accept and deal with the difference in parenting styles during marriage, then you can accept these differences in divorce too.
- Find ways to communicate with the other parent that eliminate (or reduce) hostility – The more you communicate, the more chances for conflict. There is no need to communicate about minor things, so don’t communicate unless you have to do so. When you do communicate, be factual, concise, and business-like. Avoid sarcasm. Don’t tell the other parent how to parent and avoid criticizing their parenting. Also, consider communicating by email or letter which will give you an opportunity to be careful with your words.
- Trust your children to tell you or another trusted person if things don’t seem comfortable or safe – Even if you do not have confidence in the other parent, have faith in your children to adapt to the circumstances and to communicate their needs and concerns to you.
- Let go of your need to control every aspect of your children’s lives – As parents, we want to protect our children from every possible harm and to grow strong physically and emotionally. Keeping them in a stranglehold, no matter how good your intentions, may cause your children to become, among other things, timid and emotionally co-dependent or perhaps resentful and rebellious. Don’t let your instinct to protect them overshadow their need for individual growth.
Should I Fight for Custody of My Children in South Carolina?
Ultimately, this is the most difficult decision any divorcing parent has to make. Custody battles are emotionally and financially draining. Whether you choose to fight for custody may be driven by the need to spend time with your children or some greater concern such as whether the other parent is causing harm to your kids. 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.