Children's issues are some of the most complex, and often most expensive, cases in South Carolina Family Court. Every case is different, but here is some general information about custody and visitation.
Who has custody if the child's parents are not married?
According to S.C. Code Section 63-17-20(B), if a child is born out of wedlock, the mother has custody of the child unless and until she relinquishes her rights or a court orders otherwise.
When a child's parents are married, does the mother automatically get custody?
No, each parent is treated equally by the Court.
How is child custody determined?
The overarching consideration is the best interest of the child.
Factors for determining "best interests of the child"
This is a brief, non-exhaustive summary of factors that have been considered in awarding custody:
- who has been the primary caretaker of the children
- each parent's morality, as it affects the children
- each parent's fitness, character, attitude, and inclinations
- child's psychological, physical, spiritual, educational, medical, and emotional needs
- each parent's level of emotional stability
- each parent's support network
- report of the guardian ad litem
- willingness to share transportation costs for visitation
- each parent's education
- each parent's parenting skills
- amount of time each parent is available to spend with the child
- the child's reasonable preference for custody
- evidence of domestic violence
Kinds of Custody
There are two basic types of custody, sole custody and joint custody. There are also different rights related to custody: legal custody, which refers to decision-making authority, and physical custody, which refers to who the child is physically with.
With sole custody, one parent is awarded legal and physical custody of the child, and the other parent receives visitation.
Joint custody can involve joint legal custody, joint physical custody, or both. Joint legal custody generally provides that the parents will both be involved in making major decisions about the child's life, including education, medical, and religious decisions. Joint physical custody generally means that that both parents will share the custody of the child; that the child will spend significant time in both households.
Can your child decide who he/she wants to live with?
Probably not. According to S.C. Code Section 63-15-30, the Court is required to consider the child's preference, but can determine how much weight to give that preference based on how old the child is and how mature he or she is, as well as his or her experience, judgment, and how well he or she expresses the preference.
What is "standard" visitation?
Standard visitation usually refers to the schedule of visitation for a non-custodial parent (where the other parent has sole custody). It usually refers to visitation with the child every other weekend, portions of holidays, and for a few weeks during the summer.
Can custody be changed from one parent to the other?
Yes. The parent who wants the change of custody must show that there has been a substantial change of circumstances (since custody was initially determined) such that the best interests of the child would be served by changing custody.