South Carolina Child Custody And Visitation Guidelines
In 2012, South Carolina initiated a new law which defines joint and sole custody, creates a new requirement for submission of parenting plans, requires judicial consideration of joint custody in some cases, organizes scattered statutes and case law into a uniform listing of factors to be considered when the court determines custody, expands parental rights, and creates a Family Court Study Committee.
South Carolina law has no presumption favoring mothers over fathers or fathers over mothers in child custody cases. 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. 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, 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 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 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.
Custody Action in South Carolina
Either parent can file a custody case with the family court in South Carolina if both parents live in the state. If a parent has recently moved to South Carolina, the child in question must have lived in South Carolina for six months before a custody case regarding that child can be filed there. Under South Carolina custody law, parents do not have to prove the other parent unfit in order to receive custody.
Types of Custody
Sole custody, typically favored in South Carolina case law, is defined as a situation where a parent or other person “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.” If sole custody is awarded, the noncustodial parent will be allowed “appropriate parenting time.”
Joint custody “means both parents have equal rights and responsibilities for major decisions concerning the child,” but a judge could pick “one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.” If joint custody is awarded, the order must include “residential arrangements with each parent in accordance with the needs of each child; and how consultations and communications between parents will take place, generally and specifically, with regard to major decisions concerning the child’s health, medical and dental care, education, extracurricular activities, and religious training.”Parenting Plans Required At all temporary hearings where custody is contested, each parent must prepare, file, and submit to the court a parenting plan, which reflects parental preferences, the allocation of parenting time to be spent with each parent, and major decisions, including, but not limited to, the child’s education, medical and dental care, extracurricular activities and religious training. However, the parties may elect to prepare, file, and submit a joint parenting plan. The court shall issue temporary and final custody orders only after considering these parenting plans; however, the failure by a party to submit a parenting plan to the court does not preclude the court from issuing a temporary or final custody order.
Court Consideration Factors
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. In making a decision regarding custody of a minor child, the court must give weight to evidence of domestic violence. Final custody determinations are still governed by “the best interest of the child” standard:(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, etc.; (6) the actions of each parent to encourage the continuing parent-child relationship; (7) the manipulation by or coercive behavior of the parents ; (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; (13) the child’s cultural and spiritual background; (14) whether the child has been abused or neglected; (15) whether one parent has perpetrated domestic violence or child abuse ; (16) whether one parent has relocated more than one hundred miles from the child’s primary residence ; and (17) other factors as the court considers necessary.
The court can “award joint custody to both parents, or sole custody to either parent,” but regardless of the custody determination, the family court can “allocate parenting time in the best interest of the child.” Where “an order for custody affect[s] the rights and responsibilities of the parents, the order can include (1) “approval of a parenting plan,” (2) an award of sole custody or joint custody, and (3) “other custody arrangements as the court may determine to be in the best interest of the child.” In the court’s final order, a determination of custody must be accompanied by the court’s reasoning for the decision.
South Carolina Visitation
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.
Even if the custodial parent does not receive court-ordered child support from the other parent, under South Carolina child custody laws, he or she cannot restrict that parents visitation rights. Both a refusal to allow visitation and failure to pay child support may result in punishment by a judge.
Every child has a biological father. A biological father is the man by whom a child’s mother became pregnant. Not every child has a legal father. If a mother is not married to the father when the child is born, the child does not have a legal father. Establishing that you are the legal father creates a legal relationship between the father and the child. This is a necessary first step if the father desires visitation or custody. A father who has not been declared a legal father has no legal rights concerning the child.
The custodial parent (usually the mother) is required by law to give the name of the child’s father to the South Carolina Department of Social Services ONLY if she applies for benefits. The Child Support Enforcement Division will begin legal proceedings in the Family Court to determine the legal father of the child and establish and enforce child support payments.
Both parents can determine the legal father voluntarily by signing a Paternity (fatherhood) Acknowledgment form under oath. This will insure that the child’s original Birth Certificate includes the father’s name. The Paternity (fatherhood) Acknowledgment form may be completed at: Birthing Hospitals or at The South Carolina Department of Health and Environmental Control (DHEC)
In South Carolina, there are primarily three ways to establish legal fatherhood.
- Both parents can voluntarily acknowledge paternity while at the hospital when their child is born by completing a Voluntary Paternity Acknowledgment.
- Both parents can go to the State Office of Vital Records or to the Vital Records office at their County Health Department and complete the Voluntary Paternity Acknowledgment at any time after their child is born (there is a $27 fee to complete this process at Vital Records).
- A court or administrative order is issued stating who the legal father is (this process is followed when unmarried parents request a low cost DNA Test through Child Support Enforcement.
Both parents and the child have the right to a full parent-child relationship. Both parents deserve an opportunity to develop, enjoy and grow in this relationship. The father has the right to know the child and to contribute to the success of the child’s future. The greatest statistical indicator of whether or not an unmarried dad will be involved in his child’s life is whether or not he establishes paternity.
Legal paternity is the legal connection between father and child and is the premise for every parental right that a parent has including the right to seek visitation and/or custody.
Modification of Custody Orders
Both parents have the right to modify any existing custody orders that are no longer relevant or outdated. Custody modifications are granted in most state courts based on what is in the best interest of the child.
In order for a South Carolina court to grant a change of custody based on changed circumstances, the party seeking the change must meet the burden of proof demonstrating the specific occurrence of change or sufficient facts which warrant the conclusion that the best interests of the child will be served by the change. The circumstances creating a request for a change of custody must happen after the date of the original custody order.
The SC court has jurisdiction over any original custody decree which is granted in South Carolina. If the child’s mother decides to move out of the state, the original custody order is still valid in the new state. If she moves to keep the child away from his father, the father has the right to petition to the court to have the child brought back to the original state.
When a party to a family court order fails to follow its terms, one can petition the family court to enforce the order and secure the other party’s compliance. The enforcement mechanism is through a contempt action, commonly called a “Rule to Show Cause.” A rule to show cause asks the family court to hold the opposing party in contempt until he or she complies with the provision of the court order at issue.
A finding of contempt requires a finding that the other party failed to comply with the court order and was “willful” in his or her non-compliance–that is, that the other party had the ability to comply with the court order and chose not to.
Rules to show cause carry powerful sanctions. The court can order the other party to spend up to one year in jail, fine him or her up to $1,500.00 or make him or her perform up to 300 hours of community service unless and until that party complies with the court order. Further the court can order the other party to pay the prevailing party’s attorney’s fees and costs for bringing the rule and that contemnor’s ability or inability to pay these fees is not a factor in the court setting these fees.
Registration of Out of State Custody Orders
A child custody determination issued by a court of another state may be registered in South Carolina, with or without a simultaneous request for enforcement, by sending to the appropriate court a letter or other document requesting registration and a certified copy of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified. A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a SC court.
South Carolina Resource Information Line:
The foregoing information is provided as general family law guidelines
in South Carolina and should not be considered as legal advice specific to your case. After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.org
Submitted by Linda O’Marie, Paralegal
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