As part of a divorce, parents must establish a parenting schedule and decide on child custody issues, including whether they will share joint custody or whether one parent will have sole custody with visitation to the other. Ideally, parents will make those decisions themselves on the basis of what’s best for their kids. If they are unable to work out the parenting issues, though, the courts will make the decisions.
South Carolina courts make custody decisions based on what is in the “welfare and best interests of the child.” (Woodall v. Woodall, 471 S.E.2d 154 (S.C. 1996)).
The law in South Carolina advises judges that the best interests of the child are most important, taking all relevant factors into account. Unlike many other states, South Carolina does not consider joint custody arrangements to be necessarily in a child’s best interest. In fact, joint custody is initially presumed to be harmful to a child because many divorced parents remain bitterly divided and unable to cooperate. A joint custody arrangement requires more interaction between fighting parents, which produces a higher likelihood of conflict that a child may be exposed to. If parents want joint custody, they must demonstrate to the court why joint custody will be in a child’s best interest.
The “tender years doctrine” was a legal doctrine followed for a period of time in South Carolina, under which courts preferred to grant custody of very young children to their mothers. The South Carolina legislature abolished this doctrine in May 1994, and South Carolina family courts may no longer prefer mothers in custody disputes based on a child’s age.
In evaluating the child’s best interests, family courts consider each parent’s personal characteristics, including attitude, character, and parental fitness—a parent who doesn’t ask for or want custody, or who demonstrates irresponsibility, will probably get an order for visitation, but not an award of custody.
In addition, judges consider a broad range of relevant factors in the child’s life, including the following:
Children with special needs require significant financial resources and time. A judge may grant custody of a special needs child to the parent who has the most time to devote to the child’s care. A judge could also grant custody to a parent who lives nearby a medical facility where the child is receiving care.
A child’s academic record may indicate which parent ought to have custody. Poor academic performance may indicate the home environment isn’t supporting the child’s success in school; on the other hand, a child who’s doing well in school and in the community shouldn’t be subject to a change of custody unless other factors show that the change is in the child’s interests.
The psychological condition of the child as well as family members can influence a custody decision. A judge may be hesitant to grant custody to a parent who has significant psychological problems because the parent’s mental state may cause the child to be deprived of the necessary attention and support.
The judge will consider the emotional maturity of a child, which could indicate how well a child can adjust to changed circumstances.
Although this is a factor that judges are intended to consider, South Carolina law does not define spirituality. Parents may have different ideas about what religious or spiritual values they want to teach their child, leading to difficult conflicts. In cases where parents don’t agree about religious upbringing, judges tend to grant custody to one parent and allow that parent to make the decisions, to minimize confusion and arguments. However, in most cases the other parent isn’t prohibited from providing the child with alternative religious education during visitation periods.
A judge will consider what home environment is best for a child, evaluating each home’s level of stability, continuity, and support for the child’s needs . The judge may also look at who else is in the home—if one parent has a new partner who the judge doesn’t consider a good influence, custody may go to the other parent. The type of recreational opportunities and level of contact with other children is also an element of the home environment that judges will take into account.