A custody proceeding is any court case where legal custody, physical custody, or visitation is being decided. For example, a judge may decide custody as part of a divorce, separation, neglect, abuse, paternity, domestic violence, or guardianship proceeding. Regardless of the type of case, a child’s best interests are always at the center of any custody proceeding.
South Carolina law recognizes two main custody types—physical and legal custody. A parent with physical custody lives in the same household as the child. Additionally, the parent with primary physical custody (also called “the custodial parent”) is legally responsible for the child’s basic needs such as food, clothing, education, medical care, and safety. The parent without primary physical custody (called the “noncustodial parent”) is usually responsible for paying child support to the other parent.
Legal custody is distinct from physical custody. In other words, a parent who does not have physical custody of a child may still have legal custody. Legal custody involves a parent’s right to make major educational, medical, dental care, extracurricular, or religious decisions on the child’s behalf.
In most cases, parents will share legal custody. However, if the parents can’t agree on where the child should attend school or whether the child should receive medical care, the custodial parent has the right to make the final decision. Even if one parent has sole legal and physical custody, the noncustodial parent has an equal right to access the child’s medical or educational records. Additionally, South Carolina law allows a noncustodial parent to participate in and attend a child’s school activities unless it’s expressly prohibited by court order.
Each parent is entitled to visits (also called “parenting time”) with the child regardless of whether that parent has legal or physical custody. South Carolina mandates that a noncustodial parent receive a minimum amount of visitation unless that parent’s parental rights have been terminated or visitation won’t serve the child’s best interests. Typically, a minimum visitation award will grant a parent one weeknight visit and overnight visits every other weekend. A judge may deviate from the minimum amount and may award a parent additional visits; however, a judge cannot award less than the minimum time.
Parents may reach their own custody agreements as long as the terms serve a child’s best interests. Some couples enlist the help of a mediator to reach a custody agreement. A mediator is a neutral third-party trained to help facilitate a settlement. Mediators are not a substitute for legal counsel, but many mediators can help couples negotiate productively and resolve their differences.
Once parents have reached an agreement they must submit the signed settlement to a judge. The judge will review the settlement to ensure it adequately meets a child’s needs and if it does, it will become an official court order. When parents cannot reach an agreement, a judge will decide custody.
Any factor that is relevant to your child’s best interests is relevant to custody. Specifically, a judge may review the following factors to better understand your family’s circumstances:
A court is not limited to considering the above factors. However, a parent’s gender cannot be the basis for awarding or denying custody. Mothers don’t have an automatic advantage in custody proceedings, but the parent who was the primary caretaker and is better able to provide for a child’s emotional and physical needs might be more likely to get custody, regardless of gender.
There’s a rebuttable presumption that a parent who has committed domestic violence against the other parent or the child, should not receive custody. The abusive parent can overcome that presumption by showing that an award of custody would be in the child’s best interests but it’s a difficult standard to meet when there’s evidence of abuse. In some cases, a judge may deny custody and place further limits on an abusive parent’s visitation rights, including no overnight visits or supervised visitation.
A supervised visitation order requires a neutral third party or an agency to oversee all visits between a parent and a child. Judges typically order supervised visits when a child is not safe in one parent’s care, but it would serve the child’s best interests to maintain contact between the child and abusive parent.
The parent whose visits are supervised is responsible for all costs associated with supervised visits. Many agencies charge a fee to oversee visitation. A supervised visitation order is rarely permanent—a judge may lift the restriction and order typical visitation when it’s clear that the child is safe and secure in the parent’s care.