Are There Different Types Of Child Custody In South Carolina?
Yes, there are different types of custody in South Carolina. When most non-attorneys hear the term “child custody”, they think of the place where the child will live. However, South Carolina’s custody laws generally refer to custody in terms of which parent makes important decisions about the child or children. This type of custody is referred to as legal custody. South Carolina’s laws recognize two types of custody: sole and joint.
Sole custody is when a parent has the exclusive right and responsibility to make major decisions about the child’s life, including decisions about education, medical and dental treatment, religious upbringing, and extracurricular activities, such as sports programs, music programs, camps, and dance programs. Sole custody is typically awarded if the parents are unable to work with each other at all, or if it is shown that one parent is unwilling or unable to make decisions that are in the best interest of the child.
When a family court awards joint custody, the parents share in making decisions about their children’s lives. However, that does not always mean that the parents must make decisions together. For example, a court can give one parent sole authority to make certain decisions, while allowing other decisions to be made jointly. An example is when one parent gets to make the sole decision as to where the child should attend school. Joint custody generally works well if parents are able to communicate with each other and place their children’s needs over their own differences and wishes.
A well-drafted joint custody order should explicitly dictate how parents will communicate with each other in making major decisions. The order may also prescribe the procedure, such as mediation, that will be used in the event that parents are unable to make a decision. This can greatly reduce the disruption to the children’s lives when parents fight over the issue in court. The amount of time that a child spends with each parent is generally called physical custody. South Carolina’s laws require each party in a contested child custody case to prepare a parenting plan that includes not only a proposal for legal custody decision making but also a proposed division of parenting time between the parents.
Like legal custody, physical custody can be sole or joint. However, sole physical custody with no parenting time for the non-custodial parent is extremely rare and is only likely if the non-custodial parent is deemed unfit or poses a real danger to the children. It is more likely that one parent would be awarded sole custody while the other parent is awarded visitation rights. A family court will try to determine what sort of visitation is most appropriate for the child. The amount of visitation that the other parent is awarded can vary widely. A primary issue in determining the amount of the other parent’s visitation is the physical distance between the parent and the child, as well as the nature of the relationship between the parent and the child.
At one extreme, the court could order very limited visitation that must be supervised by another adult. At the other end of the spectrum, the child might have extended time and many overnight visits with the non-custodial parent. If a court awards joint custody, the court will also specify the schedule for the child’s time with each parent. Joint parenting does not mean that parenting must be split down the middle; it may be divided in any way that is in the best interests of the child.
What Factors Do The Courts Consider When Deciding What The Best Interests Of The Child Are?
South Carolina Law requires that the family courts determine the best interests of a child in determining child custody. While there is no law requiring that custody be awarded to the primary caretaker, there is an assumption that it will be. South Carolina law dictates the criteria that the family courts should consider in determining custody. Those criteria are as follows, from SC Code Section 63-15-240(B):
- 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.
One of the most important factors in determining custody is which parent has been the primary caretaker of the child. The common belief that the mother usually get custody is based on the mother often being the parent who stays home and takes care of the children. Also, when a child is born out of wedlock, South Carolina law presumes that the mother will have custody until and unless the family court orders otherwise. In general, in any contested child custody case, the court will appoint a guardian ad litem at the first temporary hearing. The guardian ad litem will act as the child’s representative, and will advocate for the best interests of the child. The ad litem may also investigate all aspects of a child’s life, speak to the parties and their witnesses, and may observe the child with each parent and at each parent’s home.
For more information on Child Custody In South Carolina, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (843) 856-2222 today.