Who Wins Custody of a Child when a Spouse Cheats?

Child custody cases can be highly contested because of the emotional nature of the subject.  Throw in a flammable issue like adultery and be prepared for some fireworks!  Adultery is an issue that can cloud judgment on both sides of a case and prevent even the most straight-forward of issues from resolving themselves outside of a court room.  But does adultery truly impact the custody decision of the court?When deciding custody, the family court judge must determine what is in the best interest of the child.  The SC Code sets forth some factors that the Court should consider in determining the "best interest" in each case:

1. the temperament and developmental needs of the child;
2. the capacity and the disposition of the parents to understand and meet the needs of the child;
3. the preferences of each child;
4. the wishes of the parents as to custody;
5. 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;
6. 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;
7. the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
8. any effort by one parent to disparage the other parent in front of the child;
9. the ability of each parent to be actively involved in the life of the child;
10. the child's adjustment to his or her home, school, and community environments;
11. the stability of the child's existing and proposed residences;
12. the mental and physical health of all individuals involved, 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;
13. the child's cultural and spiritual background;
14. whether the child or a sibling of the child has been abused or neglected;
15. 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;
16. 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
17. other factors as the court considers necessary.

[SC Code §63-15-240(B) - emphasis is mine]I think it is important to note that the Code does not list one spouse's marital fault such as adultery as a specific factor the court should consider.  However, I  have highlighted a few factors that something like adultery may fall into.  Often, parents can be temporarily blinded by "new love" and focus more time on the new boyfriend or girlfriend while not spending as much quality time with their children.  A new love may also throw living arrangements and residences into disarray.  Is your spouse living with their boyfriend/girlfriend?  What if your spouse is bringing the child around the boyfriend or girlfriend?  Is your spouse moving back and forth between their apartment and the lover's?  What if you have raised your children in a home where their spiritual foundation has taught them adultery is wrong?  Paragraph 17 also gives a lot of room for the family court judge to consider the other important factors that they believe directly impact custody.The bottom line is that child custody is largely a case-by-case decision to determine what is best for your particular children.  In some cases, adultery can be a factor that would prevent a parent from obtaining custody of the children.  In other cases it simply is not enough to outweigh awarding custody to that parent. 

Do Fathers have Custody Rights when Parents Were Never Married

Question:My ex and I have two children, but were never married.  When we separated the kids lived with and stayed with me on the weekends or every other weekend depending on their schedule. No custody agreement had been made with the courts. She recently married and left the state to be with her new husband. She left the children with me.  Do I have rights and if so what do I need to do to take custody of my children?Answer:You certainly have rights, but since you were never married paternity must be established by the Court. You may be listed on the birth certificates for the children, but likely have few guaranteed rights since the children were born outside of marriage and you have not been to court to formalize any custody/visitation.  SC Code §63-17-20(B) states, "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."If you have been court ordered to pay child support you should have been adjudicated the father by the Court.  And, if you are on the birth certificate then you are presumed to be the father because of the acknowledgment of paternity that you executed to be listed on the birth certificate.  So, that would take care of the the paternity issue, but since your child was born outside of marriage it will require a court order to provide you with custodial or visitation rights.You will need to file an action seeking temporary and permanent custody of the children. The first step in that case will be a temporary hearing where you will ask the court to award you temporary custody of the children. Your ex must be served with notice of the motion and hearing time. These cases can be complex and difficult to navigate through the system, so I would encourage you to speak with a lawyer in your area to help you out.  Initial custody cases in South Carolina are decided by the Court determining what is in the best interest of the children and the court considers many factors when determining the best interest.  The South Carolina Code §63-15-240(B) sets forth those factors:

1. the temperament and developmental needs of the child;
2. the capacity and the disposition of the parents to understand and meet the needs of the child;
3. the preferences of each child;
4. the wishes of the parents as to custody;
5. 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;
6. 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;
7. the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
8. any effort by one parent to disparage the other parent in front of the child;
9. the ability of each parent to be actively involved in the life of the child;
10. the child's adjustment to his or her home, school, and community environments;
11. the stability of the child's existing and proposed residences;
12. the mental and physical health of all individuals involved, 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;
13. the child's cultural and spiritual background;
14. whether the child or a sibling of the child has been abused or neglected;
15. 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;
16. 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
17. other factors as the court considers necessary.

None of these factors will tip the "best interest" scale alone, but all are considered and weighed by the Family Court Judge in the determination of custody.

What is a parenting plan

Recently, South Carolina Family Courts started requiring parents involved in contested child custody actions to prepare and present a parenting plan to the Court at hearings.  So what is a parenting plan?  Essentially, the parenting plan is each parent's proposed plan that answers the questions about who they propose would have custody (father, mother, or some form of joint custody), how decisions will be made for the children going forward, and a placement plan that describes the time that the children will spend with each parent.Attached is a PDF version of the parenting plan used in South Carolina Family Courts.

Custody at Issue in a Divorce when DSS already has Custody

Recently, I received this question on the blog:

My wife and I have a 15 month old daughter. She was removed from our custody by DSS on April 17, 2010. We signed over for my parents to get full custody of her about two weeks ago. I know we are not getting custody of our daughter back and have already been informed by DSS. Since I know there will not be a "custody" decision made for our daughter, do I still file having a child or not? My wife and i have been seperated since May 2010.Thank you for your help in this matter,Ryan S.

The reason custody must be included in a divorce when there are children of the marriage is so there will be a court order governing the placement, support and care of the children.  In this case, there is already a court order related to the minor child of your marriage so it is not necessarily an issue that would have to be dealt with in your divorce case unless you were going to fight for the child's return and custody given back to you.

My Spouse Won't Let Me See My Children

Many times after parties separate, one of the parties withholds the children from the other spouse.  Sometimes for good reason.  But, if you are the parent not getting to spend time with your children this can be extremely frustrating.  But what can you do?

There is No Court Order in Place

If you and your spouse have just separated and neither of you have petitioned the family court for custody, then there is no court order in place governing the custody and visitation of your children.  In this case, if your spouse will not agree to allow you time with your children your main option in this case is to file an action in the family court with part of the relief you are seeking being the visitation or custody of your children.  At the time your action is filed, a Motion for Temporary Relief can also be filed where you can have a Temporary Hearing within a few weeks to have an order put in place for the pendency of your legal action.

There is an Order and My Spouse Ignores It

When there is already an order in place (whether it is a temporary or final order) either spouse can enforce the provisions of the order against the other spouse by what is known as a Contempt action.  If either of you are found to be in willful violation of the Family Court's order you could be punished by being held in contempt of court which holds penalties of up to one year in jail, community service and/or fines by the Court.  This is the "teeth" of the order and most people are not willing to chance jail time just because they do not want their spouse or ex-spouse to have time with the children.

Definition: Temporary Divorce Hearing

I meet with people who have recently been served with divorce papers.  Many times, included in this paperwork is a Motion and Notice of Temporary Hearing.  This causes many questions because the Motion seems to ask for the same relief that is requested in the Complaint.  So what is a temporary hearing?A temporary hearing is an opportunity at the beginning of a divorce or child custody matter where you can ask the court to grant you some specific relief before the final hearing.  That means when you file for divorce you don't have to wait the entire nine months or a year to get to the final hearing when you need to get alimony or child support started or a custody order so you can enroll your child in school.In most counties, your temporary hearing will be held about 3-4 weeks from the time your request the hearing and generally lasts 15-30 minutes.  At this hearing you will generally not testify, but your case will be presented through your lawyer's arguments and through affidavits submitted by you to the Court.  After that brief time, the Court will make a decision that will remain in effect throughout your case.

5 Child Custody Tips

When you are involved in a case regarding custody of your children things can get crazy and out-of-hand very quickly.  So, here are a few tips to help you out in your child custody case.

1. Really try to work with your spouse to parent together regardless of the custody arrangement.  When you are going through a divorce (or you are already divorced and you are fighting over custody) things can really turn ugly, and I mean fast.  What almost immediately happens is that the parents cease communications with one another and therefore cease parenting together and consistently.  This causes confusion for the children and can lead to problems for you in the lawsuit.  Just a few weeks ago I was in a custody hearing and each party was talking about "my son this" and "my son that."  The judge quickly lashed into them and reminded each of the parties that this was "their son" and they had to parent together.
2. Don't bad-mouth your spouse in front of the children.  Let's face it, kids talk.  I never know what is going to come out of my two year old's mouth, but it is almost always something he heard his mother or me say.  I'm sure your kids are the same way.  When you talk to you kids about their other parent you really put them in a bad predicament.  You confuse them and you cause them to lose respect for their parent.  Depending on how mature they are, they may even lose respect for you.
3. Don't bad-mouth your spouse in front of the Guardian ad Litem.  In any contested custody matter, the court is going to appoint a Guardian ad Litem to represent the best interest of the minor children in the case.  It is the Guardian's job to investigate the circumstances surrounding the children and present a report to the hearing judge about his or her findings.  During the litigation, the Guardian ad Litem is likely to meet with you several times to discuss the case.  During these meetings it is your job to make sure you build up yourself as a good parent and not spend the entire time bashing your spouse.  That never works for winning a custody case.  It just shows you are bitter and angry and that takes away from your ability to be a good parent. There are almost always concerns about the other parent's ability to be a good custodial parent, so bring those up and move on.  Don't dwell on them.
4. Help your children.  When you are trying to win a custody case you should be spending quality time with your children.  Too often parents think trips to the park and arcade are all the quality time they need.  On one hand you will probably win the heart of your child if all you do is take them out to do the fun things and buy them nice gifts, but you are probably not doing your custody case chances any favors unless you are also doing the "hard stuff."  Parenting requires you to punish, help with homework and projects, teach, have fun, cry, and everything in between.  If you're just doing the fun stuff you're only part of the way there.
5. Stabilize your life.  Do you move around a lot?  Do you change jobs often?  What's your lifestyle like?  When you are involved in a custody dispute you should try to stabilize yourself.  Make sure you have had a stable place to live for a while and that your home has ample room for your children.  If you have teenager and their are opposite sexes they should probably have separate rooms.  Can you hold down a job?  Having a stable job history shows that you can provide for yourself and your children and that you are loyal and consistent.  Good parenting attributes.  Do you party?  Do you stay out all hours of the night?  During a custody dispute don't be surprised to find out your spouse has had a private investigator following you.  If someone was documenting everything you were doing, would that help or hurt your custody case?  If that PI went on your Facebook or Twitter page would they find that you have been out partying and drinking all night the last week?

Do You Get a Free Lawyer for Your Child Support Contempt Hearing?

One question I hear frequently is whether you can get a court-appointed attorney in your divorce or child support case.  The answer is no.  There is no constitutional right to have an attorney provided for you in a private family court matter like there is in a criminal prosecution or even in a DSS abuse and neglect case.  This issue recently was before the South Carolina Supreme Court in Rebecca Price v. Michael D. Turner.In this case a father had previously been ordered to pay child support for his children and had not made a payment in over a year and a half.  He was over $6,000.00 behind in his child support payments and the Court "ruled him in."  Basically, when a non-custodial parent is ordered to pay child support through the family court the clerk of court monitors the cases and requires any person not paying on time to come to court and tell the judge their reason for not paying as ordered.  Mr. Turner's excuses were that his failure to pay was due to incarceration, drug addiction, unemployment, and injury.  At a hearing like this the defendant could be sentenced to one year in jail for civil contempt of court.  In Price v. Turner, the defendant was sentenced to one year in jail, but he could get out of jail sooner if he paid the total child support arrears that he owed.  Mr. Turner appealed this ruling because he did not have an attorney present at the hearing and he asserted that he has a constitutional right under the Sixth and Fourteenth Amendments of the U.S. Constitution.The SC Supreme Court held that there is no right to legal counsel for a civil contempt case.  The difference between civil contempt and criminal contempt is that the person sentenced to incarceration for civil contempt can purge their prison sentence by doing the activity that they previously refused to - in this case, pay child support.  In the case of criminal contempt, you cannot purge your jail sentence - you must serve the sentenced time in jail.If you find yourself in the position that you are behind on child support and you are going to a Rule to Show Cause (contempt) hearing in the Family Court, you will not be offered to have a court appointed attorney represent you so you should either be prepared to represent yourself or retain a lawyer to defend you prior to your hearing.