There is no presumption favoring mothers over fathers or fathers over mothers in South Carolina child custody laws.
As derived from S.C. Code § 63-5-30:
A mother and father are joint natural guardians of their minor children and are equally responsible for the welfare, education and upbringing of the children. The mother and father have equal power, rights and duties and neither parent has any right that is paramount to the right of the other concerning the custody and or control of matters affecting the minor children. Either parent, whether the custodial or noncustodial parent of the child has equal access and the same right to obtain all educational and medical records of their minor children. Further, they have the right to participate in their children's school activities unless prohibited by order of the court. Under SC law, neither parent should forcibly take a child from the guardianship of the parent legally entitled to custody of that child. Learn more about custody law in South Carolina from our Myrtle Beach family lawyers below.
Custody of children born out of wedlock, S.C. Code § 63-17-20(B):
Unless ordered by the court otherwise, custody of an illegitimate child is solely in the natural mother unless the mother relinquished her rights to the child. If paternity is acknowledged or proved through some other means, the father may petition the court for visitation rights or moreover, custody in a proceeding before the court apart from an action to establish paternity.
South Carolina requires the family court to determine the "best interests of the child" when deciding child custody. There is no law that requires the court to award the primary caretaker of the child custody, there is an assumption that custody will be awarded to the child's primary caretaker.
There are 17 factors for the family court to consider when determining "best interest of the child", but the court is not limited to these factors under S.C. Code § 63-15-240(B):
- The temperament and developmental needs of the child;
- The capacity and the disposition of the parents to understand and meet the needs of the child;
- The preferences of each child;
- The wishes of the parents as to custody;
- The past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
- The actions of each parent to encourage the continuing parent-child relationship between the child and other parent, as is appropriate, including compliance with court orders;
- The manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
- Any effort by one parent to disparage the other parent in front of the child;
- The ability of each parent to be actively involved in the life of the child;
- The child's adjustment to his or her home, school, and community environments;
- The stability of the child's existing and proposed residences;
- The mental and physical health of all individuals, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
- The child's cultural and spiritual background;
- Whether the child or a sibling of the child has been abused or neglected;
- Whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
- Whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and
- Other factors as the court considers necessary.
Different types of Child Custody in South Carolina:
Yes, South Carolina recognizes different types of child custody. Many people hear the term "child custody" and think, which parent will the child live with? However, generally, "child custody" refers to which parent will make the important decisions for the child or children. This is generally referred to as legal custody. In South Carolina, our law recognizes two types of legal custody: sole and joint.
Sole custody gives a parent exclusive right and responsibility to make major decisions about the child's life, including education, religion, medical treatment, and extracurricular activities, such as sports, hobbies, camps, etc. Sole custody is generally awarded if the parents are unable to work with each other at all, or if it is show that one parent is unwilling or unable to make decisions that are in the best interest of the child or children.
Joint custody is exactly how it sounds in general terms, both parents share in making decisions about their children's lives, including education, religion, medical treatment, and extracurricular activities. However, this does not always mean that the parents must make decisions together. Example, the court can award one parent the sole decision of where the child or children should attend school while all other decisions are left up to the parents jointly. A court will generally award joint custody if the parents can show a court they are able to communicate with each other and place their children's needs over their own wished and differences. A joint custody order should dictate explicitly how the parents will communicate with each other when making major decisions for the children's lives. The order should also dictate the procedure that will be used should the parents be unable to agree when making a decision, such as mediation. This can and usually will greatly reduce the disruption to the children's lives when parents fight over the issue in court.
The amount of time that a child spends with each parent is generally referred to as physical custody. Just like legal custody, physical custody can be sole or joint. Sole physical custody is rare and is only likely when one parent is deemed unfit by the court or poses a real danger to the children. If the court awards sole physical custody to one parent, it does not necessarily mean the parent deemed unfit for custody does not get to see the child. In these situations, many times the court will order supervised visitation of the children by the unfit parent and appoint a supervisor other than the custodial parent to oversee those visitations. The more likely physical custody arrangement is known as joint custody where one parent will be the primary custodian while the other receives a right to visitation. The family court will generally determine what visitation is most appropriate for the child and the amount of visitation can vary widely from case to case. One of the primary factors a court will consider in determining the amount of the other parent's visitation is the physical distance between the parent and the child.
When determining custody of a child, the court often appoints a guardian ad litem to represent the child or children. The guardian ad litem independently represents the best interest of the children and in no way represents either parent. The ad litem will investigate all aspects of the child's life, speak to the parties and their witnesses, observe the child with each parent and conduct an in home observation of the child with each parent. Generally, the ad litem will produce a report to the court conclusive of his/her findings that will the court will use when determining custody of the child.
