If custody and visitation are going to be issues in your divorce or custody/visitation case, your child or children’s well-being and your relationship with them is more than likely one of your top concern. South Carolina Family Courts hold the best interests of children above all else when making custody determinations.
If you and your spouse cannot agree as to issues concerning your children, it is important for you to have a knowledgeable family law attorney advocating for you and your children’s best interests. Hotly contested custody cases are often the most difficult, emotionally trying, and expensive issues to litigate in Family Court.
It is also important to have a basic understanding of the way South Carolina Family Courts examine the issues of custody and visitation. If you have any questions whatsoever related to the custody of your child or children, please do not hesitate to call the Law Office of J. Wyatt Wimberly today, and I will be glad to assist you. In the meantime, you will find some basic information regarding common custody and visitation issues below.
TYPES OF CUSTODY:
Generally speaking, the Family Court will usually award parents sole or joint custody of a child.
Sole custody is when one parent has physical and legal custody of the child while the non-custodial parent has visitation. Absent an agreement, the non-custodial parent’s visitation is often based on an alternating weekend and holiday schedule.
Joint Custody can technically refer to a number of custodial arrangements wherein parents are placed on more equal footing as far as physical custody of the child or children, responsibility for making major child related decisions, or both. More often than not in joint custody arrangements, one parent will be designated as the “primary” custodian and the other parent will be designated as the “secondary” custodian. While parents will most likely have the duty to consult with one another in good faith regarding child-related decision making, it is common for the primary custodian to have the authority to make the final decision in the result of a disagreement. Our statutes in South Carolina define the major decision making categories as those related to the child’s education, healthcare, religion and extra-curricular activities.
Other Custodial Arrangements: In rare occasions, a Court may order what is known as split custody. This occurs when there is more than one child and one parent receives sole custody of one or more child or children and the other parent receives sole custody of the other(s). True shared custody can occur where the parents have essentially equal physical custody and legal custody of the child or children.
There do tend to be certain trends with regard to custodial arrangements. However, it is important to understand that, absent an agreement with regard to their custodial/visitation arrangement, parents leave the Family Court with wide discretion when deciding the fate of their child or children.
WHAT FACTORS DO THE COURT LOOK AT WHEN DETERMINING CHILD CUSTODY?
As stated previously, the Court’s primary concern is always going to be the best interests of the child or children. However, when trying to decide exactly where those interests lie, the Family Court may take into consideration the following factors:
1) The welfare of the child
2) The child’s reasonable preference (although there is no ‘golden’ age, age will dictate how much deference judges give this consideration
3) Domestic violence to include physical and sexual abuse
4) The child’s historical primary caretaker
5) the character, fitness, attitude and inclinations of the parents
6) the psychological, physical, environmental, spiritual, educational, medical, family, emotional, and recreational aspects of each child’s life
7) immoral conduct which is detrimental to the welfare of the child
9) the opinions of third-parties including, but not limited to, the Guardian ad Litem, expert witnesses and the children)
10) the age, health and sex of the children.
11) written agreement of the parties
The Family Court does NOT consider the following when making a custody determination:
1) gender bias
3) The Tender Years Doctrine: Generally speaking, this refers to the now-abolished preference of awarding small children to their mothers.
CAN GRANDPARENTS OR OTHER THIRD-PARTIES EVER RECEIVE VISITATION OR CUSTODY OF A CHILD?
As described in Moore v. Moore, 200 S.C. 75, 386 S.E.2d 456 (1989), custody may be awarded to non-parents when the parents are deemed unfit or when the parents relinquish their rights. In determining a contest between a parent and a non-parent, the family court will consider the following four (4) factors:
1) Whether the parent is fit and able to care for the child and provide a good home;
2) The amount of contact (as evidence by visitation, financial support or both) which the parent had while the child was in the care of a third-party;
3) The circumstances under which temporary relinquishment occurred; and
4) The degree of attachment between the child and the temporary custodian
Nonetheless, it is important to understand that a rebuttable presumption favors the parent over a third-party.
South Carolina also recognizes the doctrines of “Psychological Parents” and “De Facto Custodians.”
A psychological parent is defined in Middleton v. Johnson 369 S.C. 585, 633 S.E.2d 162 (Ct.App.2006) as someone who, on a continuing day-to-day basis, through interaction, companionship, interplay and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support. For a third-party to show they are a psychosocial parent they must meet the following four (4) requirements:
1) The biological or adoptive parent(s) consented to and fostered the formation and establishment of a parent-like relationship with the child;
2) The petitioner and the child lived together in the same household;
3) The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
4) The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
De Facto Custodian:
S.C. Code Ann. § 63-15-60, also allows for grandparents or other third-parties to qualify as “de facto custodians” when contesting custody of a biological parent. In order for a third-party to show that they are a de facto custodian, they must show by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:
1) has resided with the person for a period of six months or more if the child is under three years of age; or
2) has resided with the person for a period of one year or more if the child is three years of age or older.
Absent qualifying for any of the other legal doctrines allowing for custody/visitation to third-parties, South Carolina statutes give the Family Court jurisdiction to award visitation to grandparents under certain circumstances. As of June 2014, S.C. Code Ann. § 63-3-530(A)(33) has been amended to provide that the Family Court has jurisdiction to order visitation for the grandparent of a minor child:
…where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:
1) the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
2) awarding grandparent visitation would not interfere with the parent-child relationship; and
a) the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or
b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.
If you wish to speak with someone regarding the custody of your child or children, please do not hesitate to contact the Law Office of J. Wyatt Wimberly, LLC today for a consultation to discuss the best option to help you move forward.