How is Child Custody Determined?

South Carolina law has no presumption favoring mothers over fathers or fathers over mothers in child custody cases. As noted in S.C. Code § 63-5-30:

The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.

When a child is born out of wedlock, S.C. Code § 63-17-20(B) applies:

Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.

When children are born of a marriage, both parents have full custody rights to the child until the family court issues an order setting custody. When a child is born out of wedlock, the mother has custody until the family court issues an order on that child’s custody but then there is no presumption over whether the mother or father should be awarded custody.

The “Tender Years Doctrine” has been legislatively abolished. S.C. Code Ann. § 63-15-10. This means that it is no longer presumed that a mother will be awarded custody of an infant child.

S.C. Code § 63-15-240(B) sets forth in one subsection the criteria the court should consider in determining custody:

(1) the temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) the preferences of each child;
(4) the wishes of the parents as to custody;
(5) 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;
(6) 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;
(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
(8) any effort by one parent to disparage the other parent in front of the child;
(9) the ability of each parent to be actively involved in the life of the child;
(10) the child’s adjustment to his or her home, school, and community environments;
(11) the stability of the child’s existing and proposed residences;
(12) 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;
(13) the child’s cultural and spiritual background;
(14) whether the child or a sibling of the child has been abused or neglected;
(15) 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;
(16) 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
(17) other factors as the court considers necessary.

South Carolina law requires the family court to determine the “best interests of the child” in setting child custody. Although there is no rule of law requiring custody be awarded to the primary caretaker, there is an assumption that custody will be awarded to the primary caretaker. Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114 (2004).

The common belief that mothers usually get custody is based on mothers primarily being the parent who stays home (or works part-time) to take care of the parties’ children. Further 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.

Where either party desires an order setting out temporary custody or visitation rights prior to trial, the court can set these rights at a temporary hearing. See What Happens at Family Court Temporary Hearings? and How does the family court litigation process work? for an explanation of the temporary hearing procedure.

Generally in any contested child custody case, the court will appoint a guardian ad litem at the first temporary hearing. The guardian acts as the child’s representative and advocates the best interests of the child. The guardian will investigate aspects of the child’s life, speak to the parties and their witnesses and may observe the child with each parent and in each parent’s home. Often the guardian is an attorney but the guardian can be a non attorney who has experience with children (often a social worker or retired teacher). See The Brave New World of Guardians Ad Litem and Custody–Fantasy and Realism for more information on what the guardian ad litem does.

The matter of who has been the primary caretaker of the child is a large factor in determining custody. However, it is not the only factor. Among the factors the court may consider in determining custody are:

  • A parent’s morality (limited in its force to what relevance it has, either directly or indirectly, to the welfare of the child). Boykin v. Boykin, 296 S.C. 100, 370 S.E.2d 884, 885 (Ct.App. 1988);
  • The character, fitness, attitude and inclinations on the part of each parent as they impact on the child. Parris v. Parris, 319 S.C. 308, 460 S.E.2d 571 (1995);
  • The psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects of the child’s life should be considered. Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996)
  • A guardian ad litem recommendations, a parent’s emotional stability and support network are factors to be considered in awarding custody. A parent’s willingness to share transportation costs for visitation and provide liberal visitation are factors to be considered in awarding custody. Radtke v. Radtke, 297 S.C. 260, 376 S.E.2d 275 (1989);
  • The education and parenting skills of a parent are legitimate factors to consider in awarding custody. Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975);
  • A parent’s attentiveness to the educational needs of a child, especially a child with a learning disability, is a factor to be considered in determining custody. Glanton v. Glanton, 314 S.C. 58, 443 S.E.2d 810 (Ct. App. 1994);
  • The amount of time a parent has available to spend with a child is a factor to be considered in making a custody determination.Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441 (Ct. App. 1990);
  • The court is required to consider a child’s reasonable preference for custody, placing weight on the child’s age, experience, maturity, judgment and ability to express a preference. S.C. Code § 63-15-30;

In making a decision regarding custody of a minor child, in addition to other existing factors specified by law, the court must give weight to evidence of domestic violence as defined in Section 16-25-20 or Section 16-25-65 including, but not limited to: (1) physical or sexual abuse; and (2) if appropriate, evidence of which party was the primary aggressor, as defined in Section 16-25-70. The absence or relocation from the home by a person, against whom an act of domestic violence has been perpetrated, if that person is not the primary aggressor, must not be considered by the court to be sufficient cause, absent other factors, to deny custody of the minor child to that person. S.C. Code Ann. § 63-15-40.

Because there are so many factors that can be examined in determining the “best interests of the child,” custody cases tend to be time consuming and expensive. The number of factors that are considered relevant to the issue of the child’s best interests has increased with time and is often expanded through creative lawyering. For example, in just the past decade the issue of parents smoking in their home and around the child has become more important as the court becomes educated to issues of secondhand smoke.

In any custody order, the family court will often issue restraints against both parents. They typically include restraints against: exposing the child to paramours or members of the opposite sex unrelated by blood or marriage overnight; disparaging the other or the other’s family in front of the child or allowing those around them to do so and; being intoxicated, using illegal drugs or abusing prescription drugs in front of the child or while exercising custody or visitation with the child. Some judges may impose additional restraints on either parent acting in ways that the judge perceives as harmful to the child. A listing of additional restraints that the courts sometime impose can be downloaded here: Child Custody Restraints

When one parent is awarded custody, the other parent will generally be awarded set visitation. A requirement for supervised visitation is uncommon and is generally ordered only when the other parent is unfit. The amount of visitation that the other parent is awarded can vary widely. The primary issues determining the amount of the other parent’s visitation are geographic distance between the parent and child (a parent who lives close by can have more frequent visitation) and the nature of the relationship between the parent and child (where the non custodial parent has a substantial relationship with the child, he or she is likely to be awarded more substantial visitation). Visitation orders can also built around the non-custodial parent’s work schedule: a parent who works an odd work schedule (such as policemen or firemen) will often be awarded visitation that coincides with their days off.

The old “standard” visitation award was every other weekend (Friday to Sunday), alternating spring breaks and Thanksgiving, a week at Christmas and two to four weeks at summer. Now, the court is generally being more generous in its visitation awards: awarding three day weekends (Friday to Monday morning), midweek afternoons, evening or overnights and more time in the summer. Sometimes the court is awarding week-on, week-off visitation in which both parents have equal time with the children.

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