A Guide to Custody Laws in South Carolina
South Carolina law handles custody issues involving unmarried parents in a similar manner to those of married parents. The statutes regarding custody originate from the "best interest" standard established by the state Supreme Court in the case of Burge v. Burge, 236 S.E.2d 1 (S.C. 1977). South Carolina Code Section 63-15-240 outlines the specific considerations that must be evaluated when determining the best interests of the child. Notably, the concept of "best interest" in custody matters involves many factors beyond those that are directly and typically attributable to the parents, such as the child’s experiences with abuse or neglect, or the presence of drug or alcohol abuse by one or both parents. While courts must employ these statutory considerations, they are presumptive; the "best interests" concept permissibly allows courts to consider other factors not directly pertinent to any statute when analyzing a family’s situation.
"South Carolina’s substantive law regarding the custody of children is jurisdiction neutral," according to Janet E . Johnson, Esq., who has published several articles addressing the laws for the S.C. Bar Journal. Standard visitation rights also adhere to the best interests doctrine. Under Section 63-3-530 C of the South Carolina Code of Laws, the state Supreme Court clarified that "the rights and obligations of parents who are unmarried [are] essentially the same as those of parents who are married." The underlying principle here is that the implementation of custody laws in South Carolina is not limited to just married parents. Unmarried parents are actually treated similarly to unsupervised married parents, and may be given equal rights to their child, even if the couple was never married.
The law in South Carolina regarding custody is clear, but it is difficult for most people who are not lawyers to understand the basic principles. The best approach to dealing with a custody case in South Carolina is to consult an experienced family law attorney, who can guide the mother or father through the legal process while looking out for their interests.
How Paternity is Established and Why it Counts
Establishing paternity is a crucial step for unmarried parents who wish to obtain custody or visitation of their children. In South Carolina, the establishment of paternity can be done through various means, including through the Department of Social Services when the child is born, through a voluntary acknowledgement by the parents, or through a court order. It’s important to note that for a father to establish paternity, they must be recognized as the child’s father on the birth certificate, or must sign an affidavit acknowledging paternity. Failure to legally establish paternity can result in complications later on with regards to custody and visitation rights.
Once paternity has been established, the father in the situation is entitled to seek custody of the child or visitation rights and contribute to child support. If you are an unmarried parent seeking to establish custody or visitation for your child, the illegitimacy law is critical to ensure that your rights as a parent are recognized and protected.
Types of Custody Available for Unmarried Parents
A variety of types of custody can be awarded to unmarried parents. Sole custody refers to a situation where only one parent has the right to determine the child’s residence and make decisions on behalf of the child. On the east coast of South Carolina, including Beaufort County, sole custody is rarely awarded. Typically, courts prefer to award joint custody.
Joint custody does not necessarily mean that the child resides with each parent equally. Although equally shared physical custody is fairly common, joint custody refers to the joint authority of both parents to make decisions about the child.
Physical custody or residential custody refers to the actual time that the child will be residing with each parent. South Carolina law prefers for parents to split the time equally when the circumstances are appropriate. It is not uncommon to have various degrees of physical custody among the parents. The longer the child resides with a specific parent during a given period of time, the more appropriate it is for that particular parent to act as primary caretaker. When considering the time-share division between the parents, the court looks to the best interests of the child with regard to physical custody and factors such as the child’s age and vulnerability.
Although parents often agree upon the joint legal custody of their child, this type of custody does not legally require equal time with the child. In joint legal custody situations, decision-making and authority are often shared equally. However, the residence of the child may largely be with only one parent.
The factors for awarding custody are set forth in the South Carolina Code of Laws Section 20-7-1690. The court must also take into consideration the provision of custody agreements between parents. If the parents can agree to a particular custody arrangement, the court is generally required to justify and explain the need to depart from the parents’ agreement. The fact that parents cannot agree to custody should certainly serve as a factor against it being awarded to one of the parents.
The court will also look to the best interest of the child when determining custody, looking at relevant factors such as the emotional environment and the stability of the child while in the home of each parent. The court will also look to the age of a child to determine what custody arrangement is most appropriate.
While mothers typically have a slight advantage when proving they are better custodial parent, fathers will have an opportunity to demonstrate that they can provide the emotional and financial needs of the child as well as the academic growth and other opportunities that the child needs to thrive.
The Standard for the Best Interests of the Child
Family courts in South Carolina will base their child custody decisions on the best interest of the involved minor children. In making a custody determination, the court will consider all concerns impacting the children. In using the above standard, the court reviews the physical, and financial, conduct and situations of both parents.
Some examples of the factors that will be weighed include:
(i) parents’ rights and obligations regarding upbringing a child; (ii) each parent’s parenting abilities and knowledge, including familiarity with a child’s preferences, lifestyle, care, and health; (iii) each parent’s fitness and character, including any record of drug or alcohol abuse; (iv) each parent’s willingness to support a child’s association with the other parent; and (v) a child’s reasonable preference, depending on the child’s age in years and maturity.
Visitation Rights for Unmarried Parents
Visitation Rights for Unmarried Parents
Similar to the process for determining custody, visitation for unmarried parents revolves around finding what is in the best interest of the child and having that goal established as the legal standard in your case. Having that goal is one thing, but how does it apply to helping a child have a meaningful relationship with both parents?
For a parent who has been granted primary or sole custody of the child, there may be concern that allowing visitation to a parent who has not been given custody may limit the child’s time with them. For a non-custodial parent, that parent may perceive many risks of harm to both the child and themselves when it comes to visitation.
Once again, it is highly recommended that parents settle their differences to come to an amicable agreement on a visitation schedule that serves both parents and the child . If parents cannot reach an agreement, it will fall to the court to decide what visitation will be granted to each parent. Among the issues the court will consider are the ability of the custodial parent to get the child to attend visitation visits and the willingness of the non-custodial parent to accommodate the schedule that works in everyone’s best interest.
In some cases, a non-custodial parent will not be allowed visitation or visitation may be supervised by a third party such as a grandparent or other family member. It is typically only serious instances of abuse and neglect that will keep a non-custodial parent from any contact with the child, but a guilty finding of a crime such as domestic violence or sexual assault could also hinder or prevent visitation from being allowed.
Changing Custody Orders
A final order of the family court regarding custody of a minor child can be set aside or modified. However, there must be a significant change in circumstances of the child or parents to warrant a modification of custody. The affected parent may file a motion to reconsider and/or a motion to amend or alter the judgment if just eight days have passed since the date of the entry of the order. Otherwise, the affected parent will need to file an action seeking to have the original custody order modified, including the specific provisions of the order which are sought to be modified. A motion for temporary relief to suspend child support payments while the case is pending may be filed with the action. The standard of proof at trial will be a preponderance of the evidence.
Other Legal Resources for Parents
For unmarried parents facing potential custody disputes in South Carolina, there are several legal resources and support networks available. Legal aid organizations provide free or low-cost legal assistance to those who cannot afford a private attorney. The South Carolina Legal Services and the Legal Aid of South Carolina offer resources and information about family law and guide you to legal counsel if necessary.
Mediation services are also an option for parents who wish to resolve their custody issues without going to court. The South Carolina Association for Mediation and Alternative Dispute Resolution offers a roster of qualified mediators who can assist parents in reaching a mutually beneficial agreement regarding custody and visitation .
Support groups and communities, both online and offline, are also available for parents who need advice, share experiences, or seek emotional support throughout the custody process. The South Carolina division of the National Parents Organization is a parenting support community that advocates on behalf of shared parenting and child wellbeing and hosts support group meetings throughout the state.
Attending community workshops on family law is another way for parents to educate themselves on their legal rights and the potential implications of their custody arrangements. Many local courts and legal aid societies host workshops and informational sessions for parents who seek guidance about their legal options.
