Child Custody & Visitation in South Carolina
A Child's Best Interest
In all child custody and visitation cases in South Carolina, the best interests of the child is the defining standard by which family court judges are to
determine these issues. In applying this standard and reaching
a determination of these issues there are several factors family court judges consider, such as:
- Which parent has been the primary caretaker for the children
- The character and fitness of each parent
- The needs of the children (psychological, medical, educational, physical or other needs particular to the child or children at issue) and the ability of each parent to meet those needs
- The conduct of each parent which may impact the welfare of the children
- Religious practices of either parent
- Domestic violence, as well as sexual or physical abuse
Sole Custody vs. Joint Custody
Child custody is typically described under two categories: sole custody and joint custody. This distinction in title may not always mean what a parent is hoping that it means. For example, a determination that one parent has sole custody of a couple's children, but that the non-custodial parent will have equal decision-making authority with the custodial parent over the major issues affecting the welfare of their children negates the description of sole custody, at least as far as legal custody is concerned. As well, a family court judge may determine that a parent has sole physical custody of a couple's child, but then devises and sets a visitation or parenting schedule that provides the non-custodial parent with essentially half of the children's summer break from school. This happens sometimes, and certainly seems to water down the idea that a litigant may have had over the title "sole custody" when the litigation began.
In the past, however, the family courts were more inclined to award sole custody: one parent would have the exclusive right to make all major decisions, and the non-custodial parent would the right to exercise visitation with the children on a set schedule. Joint custody is more commonly awarded today than in the past, as the trend among the experts has been acknowledgment of the benefits that a child gains from spending time with both parents as they grow older. In fact, it would not be uncommon for schedules to be divided more evenly, or an even division of the major decisions typically identified in child custody litigation (such as educational, medical treatment, religion and extracurricular activities) as affecting the welfare of the child or children.
Legal Custody vs. Physical Custody
Under the umbrella of child custody, there are two types of custody awarded by the family courts in South Carolina. The first form is physical custody. As the name suggests, this form of custody involves the designation of which parent will have the child or children, and at what times. A non-custodial parent would still have physical custody of their child during the times they exercise visitation with their children. (This assumes, of course, that this right to visitation is not limited or restricted in a manner that prevents the parent from actual physical custody of their child or children during any visitation periods.)
The second form of custody is legal custody. This form of custody relates to each parent's decision-making authority over important issues that impact a child's welfare or upbringing. As stated previously, there are four areas of decision-making that are typically addressed under legal custody: education, extracurricular activities, religious training and medical treatment.
MYTH: South Carolina laws favor mothers over fathers in child custody proceedings before the family courts.
Neither parent has legal favor at the initiation of the custody proceedings, whether the mother or father. At the outset of any custody action both parents are on equal footing. The law in South Carolina, through S.C. Code § 63-5-30, in fact sets forth the equality that both parents share when it comes to their children, regardless of their gender, and without regard to which parent the child spends most of their time during the school year. The statute I am referring to provides as follows:
The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children's school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.