How do I establish paternity and custody?

Question: How do I establish paternity and custody for my daughter? Me and the child's mother have fallen out a long time ago but she is still living in my home. I would like to establish paternity and custody before I separate from the mother.

You have a few options to establish paternity in South Carolina:

(1) if you are both in agreement and want to establish paternity you can complete the Paternity Acknowledgement Affidavit at either S.C. Department of Health and Environmental Control (DHEC) or the county health department in the county where the child was born.  There is usually a small fee charged (around $15). 

(2) If the mother will not agree you can go to the DSS child support enforcement office in your county and  fill out a Non-Custodial Parent Application for Services (available at DSS child support offices) and pay a $25 processing fee .  DSS will then schedule a paternity test.  If you are the father DSS will certify paternity and schedule a conference to determine a child support obligation. 

(3) you can retain a lawyer to file an action in Family Court to determine paternity and seek an order related to custody, visitation, and support of the child.  Once paternity is established the Court can address custody, visitation, and support. 

Grandparent Visitation in South Carolina

Grandparent visitation is an important issue in South Carolina - and beyond. But grandparent rights are limited in South Carolina. There is a 2014 statute that clarified our grandparent visitation statute.

SC Code §63-3-530(A)(33) provides the following:

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.

The judge presiding over this matter may award attorney's fees and costs to the prevailing party.

For purposes of this item, "grandparent" means the natural or adoptive parent of a natural or adoptive parent of a minor child.

Since the enactment of this statute there has been no case law for us to interpret these new terms with untile recently.

In Janaruy 2019, the South Carolina Court of Appeals issued its Opinion in the case of Brown v. Key. In this case, the father and mother dated when they were teenagers and from their relationship and child was born. Shortly after the child's first birthday, the father was killed in a car accident. The father's mother (grandmother) and mother's relationship was strained and father's death did nothing to improve that. There were issues related to the a possible wrongful death settlement, among other things, that created a strained relationship. While the father was still living the child had some visits with grandmother.

As the relationship between mother and grandmother deteriorated, grandmother would ask to see the child and mother would offer her some visits but insisted the visits must be supervised because of the lack of relationship with the child. Grandmother rebuffed those responses and refused visits offered because she felt (maybe pridefully) that she didn't need to be supervised. Ultimately, grandmother began to threaten legal action which pushed mother away more.

Ultimately grandmother did file an action in the Family Court seeking visitation with the grandchild. At the trial level she won. The Family Court determined that mother "unreasonably denied visitation with Grandmother for a period exceeding ninety days and 'there are compelling reasons for allowing grandparental visitation; to wit, this is the only child of grandmother's deceased child and the child will likely not know her or her father or the child's paternal family unless visitation is ordered.'" Grandmother was awarded visitation every fourth weekend of each month.

Mother appealed this alleging the Family Court erred in finding grandmother met all of the required elements for grandparent visitation as set forth above.

As stated before, grandparent visitation rights are pretty limited. The U.S. Supreme Court stated in Troxel v. Granville, 530 U.S. 57, 66 (2000) that "[W\] have recognized the fundamental right of parents to make decisions concerning the care, custody and control of their children." This includes who the children see and spend time with - even grandparents.

So, back to the interpretation of the statute at hand. In this case, grandmother had not been denied visitation by the mother. Mother had offered specific, supervised visits for grandmother and grandmother denied them because she didn't think she needed to succumb to the requests of mother. The Court of Appeals opinion states, "The record reveals Grandmother's continuing and clear resistance to this condition."

In this situation the Court of Appeals held that mother did not unreasonably withhold the visitation, but that grandmother chose not to visit because she didn't like the terms and since the visitation was not unreasonably deprived, the Family Court did not have authority to grant the visits.

The Court goes on to state that these cases should be determined on a case-by-case basis because they are highly fact specific.

Since these cases are so highly fact specific, if you have a grandparent visitation issue, I would suggest meeting with a lawyer to discuss your options.

The Other Parent Stopped Paying Child Support - Can I stop their Visitation?

Child support and visitation are two separate issues. Once an order has been issued by the Family Court, one does not impact the other.

If the other parent has stopped paying child support you have methods to enforce the Family Court's order. You can file a Rule to Show Cause to seek to hold the other parent in willful contempt of court and ask the Court to issue appropriate sanctions to induce future compliance with the order and to make arrangements for the payment of the missed child support.

In a Rule to Show Cause, if the other parent is held in willful contempt of court, possible sanctions can include jail time (up to one year), fines, and community service. There are also compensatory damages that are typically awarded such as reimbursing you for all or a portion of your attorney fees for having to enforce the order.

If you choose to withhold the visitation as your own form of punishment for the other parent's failure to pay child support you can subject yourself to the same sanctions for your willful failure to comply with the terms of the Court's order. Additionally, it makes your case for contempt against the other spouse weaker because contempt is an equitable remedy sought in the Family Court and you cannot seek equity when you are not acting equitably. In other words, if you aren't obeying the Court's Order, you cannot expect the Court to enforce the order to make the other person obey the order.

Joint Custody: This trap will guarantee joint custody won't be an Option for You

Joint custody has had a pretty bad rap in South Carolina family law history.  Traditionally, it has been articulated in case law as not being in the children's best interest.  More recently, joint custody has become more popular and many family court judges are trying to work out how to best award joint custody in custody cases where it is clear that both parents are involved in their children's lives.  Currently, it is most likely for an award of joint custody to occur at a temporary hearing, but it can be lost along the way depending on parent behavior. 

Before we jump right in to this discussion, let's quickly talk about what joint custody is. SC Code §63-15-210(1) defines "joint custody" as "both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions." 

When ordering joint custody, the Court must designate a parenting schedule and how these parenting decisions will be made.  That means the joint custody does not necessarily require a 50/50 placement of the children between the parents. 

So, what is the fast lane to losing an opportunity for joint custody: choosing not to co-parent.

Often times parenting from two different homes becomes a competition and parents lose focus of what is truly important.  They begin to focus on how to outdo or undermine the other parent and less about how to work together to ensure their child is well taken care of. This is a selfish approach and one that is not looking out for the best interest of the children. 

SC Code §63-15-240(6) provides one of 17 statutory factors the Family Court considers when awarding custody: "the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders."

By focusing on "winning" or "out doing" the other parent you will likely lose your bid to have joint custody of your children. 

South Carolina case law essentially states that joint custody is not an option for Family Courts to consider in contested cases as a contested custody case is prima facie evidence that the parents cannot work together to resolve the issues related to their children. 

Tripp Atkins is a Greenville, SC family lawyer who focuses a large portion of his practice on divorce/separation matters that involve children. To schedule a consultation with Tripp, please call 864-558-0512 or use the contact form below to email Tripp directly.

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Can I go from Fostering a child to Adopting the child?

There is a difference between the terms, "foster care" and "foster to adopt". The ultimate difference about your current status with DSS is what your intent was when you began working with DSS. If you are a licensed foster parent, you began working as a foster parent to provide a temporary, stable, loving, nurturing home for South Carolina's abused and neglected children. It was not necessarily your intent to adopt any of the children who began living in your home.If you approached DSS with the intention of finding a child to adopt - not to have random children placed in your home for temporary placement then you are seeking a "foster to adopt" placement.

Either is fine, but there is a legal difference between the two.South Carolina has a policy that the reunification of the children with their family serves the best interests of the child and is the preferred approach in removal cases so long as the abuse/neglect that occurred has been remedied and the child can be safe and healthy in the home with family.An adoption of a child from DSS cannot take place until the child is legally free for adoption - meaning the parental rights of the birth parents have been terminated.  Sometimes based on past history with birth parents or just in observing the progress (or lack of progress) the birth parents are making toward completing their DSS treatment plan, the focus of the agency may begin to shift from reunification to termination of parental rights and adoption for a child. At that point the agency begins to look for permanent placements (adoptive resources) for that child. It is possible if you have been serving as a licensed foster home for that child to apply for a foster to adopt placement for that child - even if you didn't originally have the intention to adopt the child from the beginning.  If you are starting out as a foster to adopt family then you will be waiting to be matched with children who are legally free or whose parents are not looking like they will remedy the situation that lead to the removal of the children.

How long will my adoption take?

The length of time that’s your adoption case will take will depend on many factors including the type of adoption (DSS adoption, grandparent adoption, stepparent adoption, private adoption agency adoption).Another factor that impacts the time of an adoption is where we are starting. For example, are you matched with a birth mother yet through a private search or through the use of an agency? If you are adopting through DSS, has the child been placed with you for adoption purposes and have the parents rights been terminated? Have the birth parents filed an appeal?An uncontested step-parent adoption or grandparent adoption could be completed in as little as 90 days or so, while the process from start to finish through an independent or agency search could take upwards of two years.If you would like to discuss your options for adoption in South Carolina, please call Tripp at 864-558-0512 or use the form below to schedule a consultation to discuss your case. The consultation is complimentary and confidential.[contact-form-7 id="357" title="Contact form 1"]

Do You Need to Establish Paternity?

If you are married and a child is born, the law has a presumption of paternity.  That means, when a child is conceived during a marriage, the husband is presumed to be the father of the child.  We know that is not always the case and what to do in this situation is discussed in another article, here.In this situation, there is a child born to unwed parents.  Just because the parents aren't married doesn't mean there is conflict and problems between the parents creating custody battles and visitation issues.  But, it is when these relationships break up that the issues can arise.SC Code §63-17-20 (B) states that, "Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.""Illegitimate" means that the parents were not married at the time the child was born or conceived. This essentially states that if the parents are unwed then the mother will have legal custody of the child.  In this situation, the father has no rights to the child until he has acknowledged paternity (through an administrative process to have his name placed on the birth certificate) or until his paternity has been determined by the Family Court.Real Life Example: You are an unwed father having a fun weekend with your child.  The child's mother gets mad at you and shows up at your house demanding the return of the child.  This is your weekend with the child (you and she had been operating under an informal agreement for months).  She is so mad that she calls and asks for a law enforcement officer to accompany her to your home.  The officer will require you to return the child to the mother.There are other risks involved as well. If your paternity has not been established and you have not interacted with the child, visited the child, or financially supported the child, the law may not even require the mother to provide you notice if she decides to put this child up for adoption resulting in the termination of your parental rights.

South Carolina Child Custody

If you are facing a separation/divorce matter or you are aren't married but have children with someone and you are considering separating you most likely have many questions related to the child custody laws in South Carolina, how things will look when you separate, and what you can expect when it comes to time and responsibility for your children.  When you discuss things with friends who have "been there, done that" or you begin your research online you hear lots of terms.  Many of them are confusing or seem contradictory.When it comes to custody of children I encourage people to ignore general words like sole custody, joint custody, shared custody and consider two things: (1) the time with their children and (2) the responsibility and decision-making for the children.  Let's look at each individually.

Time with your children

The SC Code identifies two types of custody in §63-15-210: joint custody and sole custody.  These terms really have nothing to do with the time you have with your children.  The court may identify a parent to be the "primary" parent for issues such as school assignments but that doesn't mean that one parent has the child the majority of the time.In a child custody case - and primarily while being negotiated by the parties - an agreement can be reached that resolves the time with each parent issue in creative ways.  The parents may agree to divide the weeks equally, alternate weekly, have the child live with one parent the majority of the time and available when the other parent is off of work, and countless other options.  Judges are even beginning to stray from the old every other weekend mentality by extending those weekends and adding more off-week time with the children and the non-custodial parent.All of that to say: don't assume one parent has to have the children the majority of the time and the other parent has to settle for alternating weekends.

Responsibility and Decision-making for the children

South Carolina custody laws set forth two types of legal custody: joint custody and sole custody.  These specifically related to the responsibility and decision-making for the children.  §63-15-210 defines joint custody when parents have equal rights and responsibilities for major decisions concerning the children.  This can work in many cases, but can also be a bad decision for other parents who simply can not co-parent and work together.  The court can designate one parent to be the primary decision-maker for several or all issues including the children's health, education, religious upbringing and general wellbeing.  The court can also So in the event the parents cannot agree to a final decision one of them can make a decision.  This primary decision making can also be broken up between the parents where one parent is the primary decision-maker for health and religious issues and the other would be the primary decision-maker for educational issues.  Even in instances where there is a primary decision-maker, the requirement is still there for the parties to confer jointly in the decision-making process.  The primary decision-maker does not have the right to make all of the decisions without conferring with the other parent.In the case of sole legal custody of the children the custodial parent has the legal authority to make all of the decisions for the children without the input or opinion of the other parent.  In cases where one parent has not been involved in the life of the children or the parents simply cannot put aside their differences and work together to co-parent, this is the most likely outcome in a custody case.