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.
Child Custody: Mom Automatically Wins, Right?
It is a common misconception that the mother is automatically entitled to receive custody of the minor children, especially when the children are very young. The "tender years presumption" is an old factor that used to automatically grant the mother custody of young children because it was assumed that she was the best person to be the primary caretaker of the children.This presumption is no longer valid. In fact, South Carolina law has abolished the tender years presumption (S. C. Code §63-15-10). Now, in order to determine who gets custody of the minor children in a custody battle in South Carolina a judge will consider what is in the "best interest of the children" along with several other factors.The factors considered in custody cases are:
- Resources of the parents
- Who has been the primary caretaker
- Immoral conduct of the parents
- Child's reasonable preference
- Domestic Violence
- Relgious faith
- A Guardian ad Litem's report
While there is no tender years presumption any more, that does not mean that the mother will not win custody. It just means that it is not an automatic decision. Mothers are winning custody of their children every day in South Carolina. Basically, in overruling this presumption, the courts are saying that this is not the best resolution in every case so all of the evidence should be considered and what is in the best interest of the children will prevail.There are a couple of other factors that will not be considered:
- No gender bias: that means that a daughter will not automatically be placed with their mother and a son will not automatically be placed with their father.
- Race is not a factor in determining who the custodial parent shall be.