As child custody lawyers in Charleston, South Carolina, we wrote this article to give parents a comprehensive understanding of child custody laws in South Carolina. The issues of Child custody and visitation are often the most important issues in our clients’ family court and divorce cases. Although every case is unique, this article is intended to summarize child custody laws in South Carolina. In this article, we 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.
What Are the Types of Child Custody in South Carolina?
There are two basic types of child custody in South Carolina – sole and joint custody:
What is Sole Custody in South Carolina?
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.” “Full custody” and “sole custody” are the same thing. They mean that one parent has primary physical and legal custody of the children.
“Physical custody” refers to a child’s physical care and supervision. In other words, which parent will have the kids most of the time, in which case the other parent will receive a “visitation schedule” or “parenting schedule.”
“Legal custody” refers to which parent is entitled to make the major decisions concerning the children. The categories are generally broken down as follows:
- Medical Decisions: If a child gets a fever or scrapes his knee, then the parent who has the child should be able to care for the child appropriately. If a child breaks his arm, the child is typically taken to the hospital, and for injuries like this, the parents follow the doctor’s recommendations. There are other scenarios where two parents may have differing opinions on which course of treatment to take. Common examples include ADHD medications, braces, and vaccinations. When parents disagree on these issues, the one with “legal custody” makes the final decision.
- Education Decisions: If there are options on where to enroll a child in school, the legal custodian gets to make that decision. The legal custodian will also normally be entitled to give more meaningful feedback if there is an IEP or 504 Plan. When determining whether to hold a child back a grade, the parent with educational decision-making would get to make this call.
- Religious Decisions: This one is not as clear as the first two. For example, the legal custodian may want to raise the children in one place of worship. Still, depending on the case facts, nothing may prohibit the non-custodial parent from taking the children to a place of worship for a different religion or teaching the child about other religions. Further, many children form their opinions on religion before their 18th birthday.
- Extracurricular Decisions: While the legal custodian may enroll a child in a sport, boy or girl scouts, dance lessons, or something similar, they usually cannot force the other parent to take the child to these activities during the other parent’s visitation time. The parent with the kids more than 50% of the time will have more influence over the kids’ activities. Regarding extracurricular decisions, it is best for both parents (with feedback from kids when they’re old enough) to have conversations with each other about what they’ve seen and what might be good for the kids. It cannot be overstated how much the kids appreciate it when both parents agree on the same activity or activities and take the children to all practices, games, etc.
What is Joint Custody in South Carolina?
“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.
In 2012, the South Carolina legislature enacted a law that specifically authorized a judge to award joint custody to both parents and required the judge to consider all custody options in every contested case, including joint custody if either party asks for it. However, our courts have said that “although the legislature gives family court judges the authority to order joint or divided custody when the court finds it is in the best interests of the child, … joint or divided custody should only be awarded when there are exceptional circumstances.”
Joint custody usually provides a schedule that gives each parent approximately 50% of the time. Parents should consider schedules of full week-on/week-off, or even month-on/month-off, to reduce the disruptions in the children’s lives. Joint custody may also leave the parents in a difficult position later if they disagree on a major decision because no person is entitled to make the final call. Then the parents will end up in court if they need a resolution.
It should be noted that the Department of Social Services Child Support Guidelines still contemplate one parent paying the other child support in true joint custody situations. However, the parent with the higher income might pay less than if he or she had only a standard visitation schedule.
All of this being said, we have seen joint custody arrangements that work out just fine. We have seen others that result in one of the parents taking the other back to court to change from joint to sole custody. We have seen others who don’t go back to court but live a life of minor and major arguments until all the kids are emancipated.
What is Shared Custody in South Carolina?
“Shared custody” is the term most used when discussing physical custody. The label “shared custody” does not have much significance except for calculating child support, where a judge can use a different formula that causes child support to be lower. This discretion begins when the non-custodial parent receives more than 109 overnights per year (30%). A joint custody arrangement may also be “shared custody” for calculating child support.
What is Split Custody in South Carolina?
Split custody refers to custody arrangements where there are two or more children, and each parent has physical custody of at least one child. The non-custodial parents of each child may still have visitation schedules. Like shared custody, “split custody” is just a label whose only real significance comes when calculating child support.
How is Custody Decided in South Carolina?
When deciding what is in the child’s best interest, courts are to consider the following according to Section 63-15-240 of our Code of Laws:
- 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 (such as who has been the “primary caregiver”), 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 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 the other 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 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 which parent has been the “primary caregiver” (factor #5 above), there are several ways of showing who took the lead on parenting and caring for the child. Examples include:
- Who made sure the household bills were paid;
- Who scheduled and/or took the kids to doctor’s appointments;
- Who registered the kids for school;
- Who attended meetings with the school;
- Who participated in field trips;
- Who planned birthday parties;
- Who bought the groceries;
- Who did the cleaning, yard care, and home maintenance;
- Who did the cooking;
- Who fed the kids;
- Who made sure the kids were ready for school and that breakfast and lunch were taken care of;
- Who spent more time with the kids helping with homework;
- Who took the lead during bath time;
- Who did the laundry and made sure the kids’ clothes were organized;
- Who organized birthday parties or bought birthday gifts;
- Who researched and signed the kids up for sports or extracurricular activities; and
- Who helped as a coach on the kids’ teams.
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. Also, the family court may consider whether the child has special needs and which parent can meet those needs. Lastly, the court may consider the impact a parent’s gender may have, concerning the child’s gender, on rearing the child.
In addition to considering the various factors described above, a family court judge also tries to determine the strengths and weaknesses of both parents. Here are some examples, some of which are listed above.
Parenting Strengths – Here are some of the factors the family court considers 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, as described above.
- 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 – The 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 often considers which parent will have more time 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 favor 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 considers to be weaknesses regarding your parenting abilities:
- Parent’s Unfitness – Some 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 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 spend time with the other parent.
- Domestic Violence – Under South Carolina law, a family court judge must consider evidence of domestic violence in deciding which parent should have custody.
After considering all these things, the family court judge will decide who should be awarded custody of the child. In making this determination, the decision is easy if the court finds one parent is unfit and the other is fit. Some examples of unfit parenting include not providing for the child’s basic needs (such as food, clothing, and shelter), exposing the child to harm, abusing the child, or abusing drugs or alcohol in the child’s presence.
Look at this situation as a set of scales with one side for mom and one for dad. Both parents in a custody case will try to show the judge what they have traditionally done and what they can offer in the future. They will then try to show that what they offer outweighs that of the other parent. In many cases, we can give a confident prediction as to how the court will decide on custody, but in those cases, we still have to figure out how much parenting time the non-custodial parent should receive. Some cases are closer calls and harder to predict.
Can a Child Choose Which Parent to Live with in South Carolina?
A family court judge must consider the children’s preference for custody. However, contrary to popular belief, there is no specific age when a child may decide where to live, and the child does not get the final say on where he or she will live. Instead, the court considers a child’s reasonable preference for custody, but the court must consider the child’s (1) age, (2) experience, (3) maturity, (4) judgment, and (5) ability to express a preference. The court will likely also consider the child’s motive, such as the child only wanting to live with one parent because that parent is less of a disciplinarian. Overall, 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.
Do I Have to Have Custody of My Child to Obtain Information About My Child in South Carolina?
Under South Carolina law, each parent is entitled to equal access and the same right to obtain all educational records and medical records of the minor children and the right to participate in the kids’ school activities and extracurricular activities that are held in public locations unless otherwise prohibited by order of the court or state law. The parties can also agree, or a judge can order, that a custodial parent has an affirmative duty to provide certain information to the other. It is not recommended to use the children as messengers.
What Does a Guardian Ad Litem Do 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 is generally appointed at the beginning of a case, the court can appoint a GAL at any time in the legal proceeding when the children’s best interests are at issue.
- The Guardian Ad Litem’s Job – The guardian ad litem’s job is to investigate matters concerning the child impartially and to communicate to the court about a child’s welfare and what would be in the child’s best interest. The GAL will investigate the facts, participate in negotiations, and take a position regarding the child’s welfare. The GAL may also become involved in a case’s financial issues when those issues affect the children.
- The Guardian’s Investigation – 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.
- The Guardian’s Recommendations – The GAL may recommend that the court help the child’s welfare and protect the child from some of the conflicts 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 of what the GAL will present to the judge. Later, the report could change depending on additional evidence or uncovered facts. Afterward, if the parents cannot agree 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. Frequently, 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 Does the Family Court View Custody Battles in South Carolina?
This excerpt is from a custody battle in which Stephan Futeral was the children’s guardian ad litem (GAL). In this case, the presiding Charleston family court judge eloquently expressed the court’s outlook on why parents should do all they can to resolve their issues before asking the court to decide their family’s future.
I want to make a few comments to you about how important it is to your family to resolve this case. . . . I know that both of you sit here today each of you are convinced of the merit of your own case and the rightness of your own position. However, asking your attorney to convert your convictions and beliefs into evidence that will result in a verdict in your favor is asking for what I believe the most difficult task that a trial attorney can be required to do.
A custody case is much different from any accident case or a criminal trial. In those cases, an attorney is only asked to prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then I must decide which of you is the better parent. Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation,” and say that you had to prove this to someone who had never seen either painting and you weren’t allowed to show the paintings to them? I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about composition, color, depth, character, and proportion. Or I suppose you could bring in some ordinary people to say which one they think is better. Maybe you could take a poll. This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but they have no way of showing me exactly how you parent. They can’t take me to the study sessions so I can see you how a good tutor Dad is. They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom comforts the child who is awakened with a fever.
I want you and I want your attorneys to bring up those incidents which show you to be caring and loving parents, and I am sure they will try. However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts will work very well. In trying to prove the positives you will discover that with the passage of time, the inability of witnesses to describe the situation with the same force with which it occurred, just the difficulty of putting into words other people’s’ thoughts, feelings and actions, all of these combine to make grey what you felt was vivid or blunt . . . what you thought was poignant. On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of your children to school without their lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?” We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent.
At the end of the trial any goodwill each of you had for the other, if there is any, will have been totally destroyed. It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers . . . will be there for you for the remainder of this long journey. We could try to do our best to get you pointed in the right direction and maybe even help you along, but it is only in the first few steps. In the end it is both of you who must raise these children.
If your children could reach into their hearts and tell you exactly what they think and feel about what is going on here, if they could get beyond the hurt we know they must feel, we all know what they would say. First they would say, “I wish Mom and Dad were back together.” Knowing this will not happen, they would say, “I wish they would just stop fighting.” No doubt they love you so much they are probably blaming themselves for your original breakup. It is time you get past the anger and put aside the hurt. You may even have to forgive. The pain that has been caused here arises from the conflict between each of you and has nothing to do with the children.
Your children want this conflict to end. You have the chance to leave there today with an agreement that is in the best interest of your children. But it is an agreement that you must reach together. You must be willing to put aside your differences and be willing to accommodate each other’s needs. But most importantly you must be ready now to put the needs of your children first. I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has happened in the past. This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to cause to these children. I can tell you right now it has happened and it happens every time. Put aside your own egos and swallow them. Leave it is in this courtroom . . . we’ve had a lot of egos left in this courtroom. You don’t see them but I do because I see parents who are willing to put their children’s welfare above their own ego. And they leave it right here and they know and understand what is really best for the children.
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 before and after separation. If you seek 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.
If you need help getting custody of your child in South Carolina, contact the attorneys at Futeral & Nelson and schedule a consultation. We can review your case with you, give you our opinion on where you stand about custody, and give you some guidance as to how to protect you and your children moving forwards.