Under South Carolina child custody laws, judges may consider many factors when deciding custody cases. Absent abuse or other wrongdoing, courts believe that a child benefits from having both parents play an active role in the child's life.
Therefore, courts prefer that the parents work out a custody and visitation schedule that allows the child to continue a close relationship with both parents. The court has the final say on whether the arrangement is in the best interest of the child.
The controlling factor in all custody cases is the “best interests” of the child. The court may consider any relevant factors that could impact the child's welfare and best interests. Therefore, some of the fault-based grounds for a divorce could impact child custody decisions in South Carolina.
What Are the Grounds for Divorce in South Carolina?
South Carolina family law recognizes five grounds for divorce:
- Physical Cruelty
- Adultery
- Desertion
- Habitual Drunkenness or Drug Abuse
- One Year Continuous Separation
The ground for one-year continuous separation is the closest ground to a no-fault divorce that South Carolina has at this time. Parties receive a divorce after a one-year separation without alleging that either party was responsible for the marriage's breakup. Because neither party is alleging wrongdoing, this reason for divorce should not impact a custody case.
However, the four remaining grounds for divorce in South Carolina are based on allegations of wrongdoing by one spouse. Those divorce grounds could potentially impact a child custody case.
How Do the Grounds for Divorce Impact Child Custody?
Courts do not award custody as a reward for good behavior or to punish the other parent. However, a person's ability to care for a child and the person's fitness as a parent are considerations that the court will review when deciding custody matters.
Even though adultery is a fault-based ground for divorce, it generally will not impact custody unless the circumstances of the adultery could place the child at risk of harm. For example, the parent's new partner has a history of domestic violence or is a known child sex predator.
However, the other grounds for divorce could impact whether the court orders joint custody or sole custody. For example, a person with a record of abuse or violence may not receive custody of a child and may have visitation limited or supervised.
The same applies to a parent who is a known drug abuser and is still using, as proven by court-ordered drug tests. The judge may decide that the parent is not fit to care for the child given the current drug abuse.
The Judge May Consider Evidence Presented for the Divorce for Custody Decisions
The spouse alleging the fault for the marriage breakup has the burden of proving that the other parent is guilty of the alleged wrongdoing to obtain a divorce on that ground. For example, if physical cruelty is the grounds for divorce, the petitioning spouse has the burden of proving domestic violence by the other spouse.
Since the court may consider any relevant factors that could impact the child's best interest, the evidence presented during the divorce action could impact the court's custody decision. Even without a parent seeking sole custody, the judge could determine that the other spouse is not fit based on the evidence the judge hears during the divorce case.
Can I Regain Custody or Visitation?
You have the right to petition the court for a change in custody or visitation for a substantial change in circumstances. Therefore, if you lost custody because of a drug abuse problem, there is a chance you could regain custody. You would need to prove to the court that you have taken steps to become drug-free, such as going through a drug rehabilitation program, submitting to voluntary drug tests to track your progress, and agreeing to future drug tests.
As with the original child custody hearing, the judge determines custody based on the child's best interest.
Contact Our Myrtle Beach Child Custody Lawyers for Help
Our Myrtle Beach family law attorneys have extensive experience handling all types of custody matters.
Call our office to schedule an appointment to discuss your situation with a child custody lawyer in Myrtle Beach.
