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. 

How Do We Prove the No Fault Divorce Ground: Continuous Separation for Over 1 Year

Question: My wife and I have lived apart for over ten months but the first 6 months she lived with her mother, the last four months she has owned her own home.  We both want a simple divorce, how do we account for the first 6 months of separation?Answer: The South Carolina Code of Laws sets forth five grounds for divorce in South Carolina in §20-3-10.  Sub-paragraph (5) is the provision for the no-fault ground as follows, "on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year."The law essentially only requires living apart from one another for greater than one year.  Our appellate courts have identified some things that do not qualify as living "separate and apart" such as one spouse moving out of the marital bedroom and sleeping in the basement or the couch in the den.  Likewise, living in an RV in the backyard would also not be living separate and apart.Your case is different.  You did separate and your wife moved into her mother's home for the first six months of separation and later she purchased a home of her own.In a hearing for divorce on this ground the evidence is typically the testimony of a witness who has a good relationship with one or both of the parties who can corroborate that you have lived apart for more than one year and have not resumed cohabitation during that time.  So, in your case, perhaps her mother could testify that your wife moved in with her for six months and then moved into her own home.  She could go on to testify that when your wife moved out of her home she moved into a new home of her own and she keeps up with her daughter on a regular basis and is confident that the two of you have not resumed cohabitation.

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.

Help! How Can I Get Started Seeking Financial Assistance from my Spouse?

Question: My husband has deserted me and refuses to help me financially. He has moved in with his mistress and won't have any contact with me! How do I file for spousal support? He is refusing to help me.Answer: You should consult with a lawyer immediately so that you can move forward with the Family Court to get some immediate relief. Unfortunately, the only way to obtain the relief you are seeking is to file an action with the Family Court for divorce/separation and request this relief through a Motion for Temporary Relief. I strongly suggest hiring a lawyer because alimony is a complex issue and there are some strict procedural rules about what the Court may consider at a temporary hearing and if you do not comply with those rules you may forfeit your rights or just plain miss out on relief you are entitled to.In South Carolina you have the option to file for divorce using one of five grounds (physical abuse, habitual drunkenness, adultery, desertion, or continuous separation for more than one year). You also have the alternative to file for separate support and maintenance which is similar to a legal separation. Those are essentially your keys to the courthouse. No matter which way you file, you will be able to ask the court to award you immediate relief such as alimony/spousal support, custody of minor children, child support, use of the marital home, health insurance coverage, etc.The family court will consider multiple factors in determining whether to award you alimony or not, and then if it does determine that you are eligible for support the Court will determine how much to award. The factors considered will be things like your ages, physical and mental health, employment history, income history, why you are currently unemployed (e.g. agreement to stay at home and raise the children), other assets you have, tax implications, length of the marriage, and a few more.As a side note and warning, I would encourage you to file something sooner rather than later. The longer you go without financial assistance from your spouse, the more it appears that it is not needed. While that is not a specific factor considered by the Court it could be relevant and a long term separation without a request for support could make it unlikely that you would be awarded support.To learn more about Temporary Hearings, check out these posts:

Divorce Process: What is a Temporary Hearing

What is a Divorce Temporary Hearing

Definition: Temporary Divorce Hearing

Temporary Hearing – What’s Next?

What Happens After my Temporary Hearing?

Is there an Advantage to Winning at the Temporary Hearing?

What Goes in my Affidavit?

My Spouse Won't Leave...Can I Still File for Divorce?

Recently, this question was posted as a comment on a blog post, "I want a divorce because my husband is a verbal and physical abuser when he drunks. Be won't leave the house. Can I still file for divorce?"South Carolina has five grounds for divorce: physical abuse, habitual drunkenness, adultery, desertion, and the no fault ground of living apart continuously for a period in excess of one year.  If you do not qualify for one of the fault-based grounds for divorce you could also file for separate support and maintenance.The desertion ground and no fault ground for divorce requires that you live separate and apart for more than one year.  You are also required to live in separate residences to file for separate support and maintenance.  So, if your circumstances fall into one of those three categories and you cannot get your spouse to leave the home, your only option will be to leave the home yourself and immediately file for separation or divorce and seek possession of the home as temporary relief at an initial hearing.If you are filing under physical abuse, habitual drunkenness, or adultery grounds you do not have to live separate and apart before filing for divorce.  Under those circumstances you may file while you are still living together.  But, just because you are able to do something doesn't mean it is the right course of action for you.  If your spouse is verbally and physically abusive under the best circumstances, how do you think they will respond when they have been served with divorce papers?  It would probably not be safe for you to remain in the home with your spouse during that time.I would suggest setting up a consultation with a divorce attorney in your area to discuss the circumstances of your case to determine if your case will qualify for one of those fault-based divorces and to come up with a strategy that will help you remain in your home, but under safe circumstances.

How do South Carolina Family Courts divide property and debts in divorce cases

There are two main division methods in divorce law nationwide: community property and equitable apportionment states.  South Carolina is an equitable apportionment state. So, what does that mean?Equitable Apportionment means that South Carolina Family Courts have jurisdiction in a divorce case to divide up the marital assets and debts acquired during the marriage.  Our Code of Laws state that, during a marriage, spouses acquire a special equity and ownership right in the marital property and those rights are subject to apportionment between the spouses.  (See SC Code §20-3-610).  To break down that definition a little further it will be helpful to define marital property.  SC Code §20-3-630 defines marital property as all real and personal property acquired by the parties during the marriage which is owned as of the date of filing or commencement of marital litigation regardless of how legal title is held.  So it doesn't matter that the home is only in the husband's name or that the Wife is the only spouse who contributed to a 401(k) during the marriage.  Of course there are exceptions to every rule.  Property obtained by inheritance, devise, bequest, or gift from a party other than the spouse, property owned prior to the marriage, and property acquired after a temporary order is entered, a marital settlement agreement is executed, or a final order of property settlement is entered.  The first step the Family Court will take is to identify all of the marital property.  Once the marital property has been identified the court will determine how to divide the assets between the spouses.  SC Code §20-3-620 identifies 15 factors that the Family Court must consider in determining how to apportion the marital property among the spouses.  Those factors include things such as the length of the marriage, the ages of the parties at the time of the marriage and at the time of the divorce, the income and income potential of each party, the marital misconduct or fault of either party (meaning someone has committed adultery, physically abused a spouse, or is addicted to narcotic drugs or alcohol), the health of the parties, the non-marital assets of the parties, and several other factors.It is not uncommon for the Family Court to issue an order of apportioning the marital property in a 50/50 (equal) manner between the spouses.  But, it is not mandatory that the Family Court divide the marital property equally between spouses.  In cases where one spouse contributed significantly greater in the financial area of a marriage, the court may deviate and award a greater portion of the marital estate to that spouse.

What should I expect at the initial consultation with my divorce lawyer?

When you meet with a lawyer to discuss your divorce case you want to know something tangible.  You have hundreds of questions and worries floating around in your head.  How much with this cost?  What is the worst case scenario?  Will I lose my kids?  How long with this take?  And many more.The initial consultation is a time for you and the lawyer to get to know more about one another.  Your lawyer will likely ask you to complete a new client intake form.  This will ask information about you such as your address, date of birth and other personal information.  It will likely as for the same information about your spouse.Many forms also request information about the marriage such as the date of marriage, when you separated, the reason for the separation, number of children born during the marriage, and it will ask for what you are seeking in the divorce.  For example, do you want sole custody of the children?  Are you seeking a divorce on adultery or some other fault-based ground?  Are there assets and debts that need to be divided between you and your husband?This will help the lawyer to understand the level of complexity involved in the case.  Also, knowing the issues important to you, he can give you some direction about the law in those areas and can provide an overview of how the process works.Your lawyer cannot provide you with an exact game plan, certain results or even really exact legal advice at this time.  Great legal advice is based on knowing all of the specific facts of your case and there is usually not enough time to uncover all of that at an initial consultation.Think of the initial consultation as an interview.  All lawyers are ethically required to be competent in the areas they practice in, but that doesn’t mean all lawyers are equal.  Your personality will mesh with some lawyers and clash with others.  And, while lawyers love being retained for new cases, they don’t accept every case that comes through their doors.  So, understand that while you are determining if you can work with this lawyer, he is also trying to determine if he can work with you.So, at your initial consultation you should be looking to determine if this is a lawyer you feel has the knowledge necessary to provide you with the representation you need and if he is someone you feel comfortable working with.  Don’t select a lawyer just because that’s who your friend or family member used.  You should also try to get some questions answered, but understand that oftentimes at this stage of your case there is simply not enough information available for you to receive an exact answer.  The answer you receive will likely be qualified with lots of “ifs” based on how the facts play out.

When should you seek modification of your child support?

A while back, I made a rare visit to the county jail to meet with a client.  Several years ago, he and his former wife reached an agreement in their divorce about custody, visitation and child support.  Things were pretty good – as far as divorces go.Fast forward a few years…his dependable job and income went away with the recession along with his income.  He wasn’t able to keep his bills current and he quickly fell behind in his child support.  He kept in contact with his former wife and did other things to try to help when he couldn’t make a child support payment.  But he continued to fall further and further behind.One day, his wife had enough and filed a Rule to Show Cause with the Family Court because my client had fallen nearly $20,000 behind in his support.At the rule to show cause hearing the presiding judge found him to be in willful contempt of court, sentenced him to 90 days in county jail, ordered him to pay all of his former wife’s attorney fees, and before he could purge his jail sentence he would have had to pay all of the arrears and attorney fees.  To add insult to injury, even after finishing the jail sentence, he will still owe the arrears and his new support payments will include some extra amount to be applied to his child support arrears.He never called a lawyer until he had been served with the contempt complaint.  Even when served with the complaint he failed to make an appointment to discuss the case and did not take a lawyer with him to the rule to show cause hearing.  He did retain me after being sentenced to jail.  At that point we had very limited options to get him out of jail, get the future child support worked out, and get some of the arrears paid for, and to pay for his former wife's attorney fees.  They really had a lot of leverage.

So, what should he have done?

Any issue related to children: custody, visitation and child support - are subject to modification by the Family Court upon a showing of a substantial change in circumstances.  This particular client should have consulted with a lawyer as soon as he lost his job and especially after he was unable to quickly find a new job.  It only worked against him to continue to fall further and further behind.  Rather than looking out for himself, it looked like he was a deadbeat dad and didn't care about supporting his children.If you find yourself falling behind in child support, meet with a lawyer now.  You should obtain some legal advice about your options.  If you like, you can set up a consultation to discuss your case now.