When parents split or divorce, someone will have to decide how the parents will share their responsibilities for their children. Parents can reach their own agreements regarding custody. When parents can't agree, a judge will design a custody arrangement based on a child's best interests.
In South Carolina, if you're splitting from your ex, you'll need to resolve custody. Simply put, 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 laws differentiate between two types of custody—physical custody 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 day-to-day care, including 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. A parent who does not have physical custody of a child may still have legal custody. A parent with legal custody may make major educational, medical, dental care, extracurricular, or religious decisions on the child's behalf.
Parents can share physical and/or legal custody, or one parent may have sole physical or legal custody. Joint custody in South Carolina means that both parents have frequent contact with their children and have an equal say in the child's upbringing.
However, a joint physical custody award doesn't mean that the parents have exactly equal time with their child. For example, one parent may have 4 overnights per week while the other parent has 3 even though they share joint physical custody of the child.
In most cases, parents will share legal custody unless it's not in the child's best interests. Even where parents share legal custody, if the parents can't agree on a matter involving the child, the primary custodial parent has the right to make the final decision. When 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 child custody laws allow 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 and/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.
Typically, a minimum visitation award will grant a parent one weeknight visit and overnight visits every other weekend. A judge may order more than the minimum amount of visitation, but not less.
Parents sometimes ask “at what age can a child can refuse visitation?”. The answer is it varies. Neither parent can prevent visits between the child and the other parent. However, a judge would be reluctant to force visits between a resistant teenager and a parent. The parent of a very young has more responsibility to ensure the child attends visits than if the child was older.
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 a judge will review it to ensure that it adequately meets a child's needs and if it does, it will become an official court order. Parents who are unable to reach a custody agreement will have to attend a trial on custody. A child's needs—not a parent's wishes—are at the heart of any custody proceeding.
Any factor that is relevant to your child's best interests is relevant to custody. See SC Code § 63-15-240 (2020). 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 a parent who has acted as the child's primary caretaker is more likely to get custody, regardless of gender. See SC Code § 63-15-30 (2020).
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 to an abusive parent and place further limits visitation, including no overnight visits and only supervised visits.
A supervised visitation order requires a neutral third-party or an agency to oversee all visits between a parent and a child. Under South Carolina's visitation laws, judges typically order supervised visits when a child is not safe in one parent's care, but it's in 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 visitation. 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.
Your custody order will last until your child turns 18 and graduates high school, is emancipated, or the order is modified. Either parent can file a request to modify custody. The parent seeking to change custody must prove that there's been a material change in circumstances and that a change in custody is necessary for a child's best interests.
One parent's remarriage or cross-town move usually isn't enough to adjust custody. Rather, a major life event such as a parent's health crisis or a child's failing grades may be enough to modification your custody order. Ultimately, the outcome of your case will turn on your child's needs.