This article is to help you understand the South Carolina laws on children and divorce and child
custody. The decision on child custody is one of the most difficult decisions that a South
Carolina family court judge has to make. Dividing the marital property can be easy, put
everything in the front yard and auction it off and split the money. Dividing up a child or
children is not so easy, especially when you have two equally fit parents. Hopefully, this article
will give you some insights into how the decision on child custody is made and how judges
expect the parents to work together to insure that the rights of all parties are protected. The first
thing a parent needs to understand is that the judge is primarily concerned with the best interest
of the child, not the best interest of the parents. When it comes to child custody, the judge is not
concerned with who did what unless it impacts the child. Lets start with an explanation of the
types of child custody and the differences. The two major types of child custody are legal
custody and physical custody.
LEGAL AND PHYSICAL CHILD CUSTODY
LEGAL CHILD CUSTODY
The legal aspect of custody for children and divorce means decision making and the parental
authority and rights of each parent. It means having the legal right to make and participate in any
material decisions affecting the children. Included are the choice or change of school, college,
camp, or comparable summer activity, special tutoring, music, sports, art, dance, and other
cultural lessons, psychological or psychiatric treatment or counseling, doctors, and surgeons;
notice of illness and injury; access to school and medical records; and all other material decisions
affecting the health, education, and welfare of the children. Specifically, legal child custody is
the right of the parent to make decisions regarding educational instruction, religious instruction,
health care, discipline, and child care providers for their child, but anything relevant to the
children could be included in the definition. Legal custody can be granted to one or both parents,
but the overwhelming preference in South Carolina is for joint legal custody. The judge expects
each parent to keep the other fully informed and to consult with the other parent in all major
decisions effecting the child.
PHYSICAL CHILD CUSTODY
The second aspect of custody for children and divorce that must be determined is physical child
custody. Physical custody simply means the right to have actual physical possession of the
children at a certain specified time. The preference is for joint physical custody, which only
means that both parents have the right to physical possession of the children at certain times. The
actual schedule can vary greatly and this is where tailoring to the specific needs of the family is
important. Joint physical custody could be an alternate weekend schedule, alternate weeks,
holidays and spring break only, summertime only, alternating weeks, reasonable as agreed, or
whatever other schedule is appropriate for the case. The primary terms used to describe physical
child custody are sole custody, shared custody, primary physical custody and split custody.
SOLE CHILD CUSTODY
This is the alternative to joint custody where only one parent is granted either all of the decision
making rights (sole legal custody) or all of the physical parenting time with the other parent
being excluded completely (sole physical custody), or both. Courts are reluctant to order either of
these options unless it is shown to be in the children’s best interests, which usually means that
physical or emotional danger to the children will occur under any other alternative. There is no
such thing as sole physical custody to one parent along with a parenting schedule for the other
parent. If both parents are to see the children, whatever the schedule, that is joint physical
custody by definition. Even where one parent is judged to be unfit, the judge will usually order at
least supervised visitation. Each parent has a Constitution right to have a relationship with their
child and judges are very reluctant to totally terminate a parent's rights.
PRIMARY PHYSICAL CHILD CUSTODY
This is the residential address of the child for educational, tax and mailing purposes. It means the
home where the child resides for the greater amount of time and the home that is in the child’s
school district. The typical designation is the custodial parent and the non custodial parent and is
the legal preference for child custody in South Carolina. One parent will be awarded primary
physical custody and the other parent will be awarded a set visitation schedule and each county
has a set “standard”. The typical standard is that the non custodial parent will have custody of the
child every other weekend from 6 pm on Friday until 6 pm on Sunday, one evening every week
and split time for holiday and school vacation periods.
This is an arrangement where the children are “split up” between the two parents, meaning that
some of the children reside with one parent while the other children reside with the other parent.
This is not too common, but it does happen. Courts are usually reluctant to split up children
except in the most unique of circumstances, but the parents can agree to such an arrangement if
they feel it is best.
SHARED CUSTODY or JOINT CUSTODY
This is an arrangement where the child is “shared” between the two parents, meaning that the
child resides with one parent for half of the time and the other parent for the other half and this is
often termed joint custody in South Carolina. This is not the preference in South Carolina since
the courts feel that it is important for the child to have stability rather than being shifted from
place to place. Where the custody is shared, the usual schedule is weekly with the exchange
being made a 6 pm on Sunday with no allowances for holidays except Christmas.
"This Court has repeatedly held that joint custody is to be avoided if at all possible and will be
approved only under exceptional circumstances. Avin v. Avin, 272 S.C. 514, 252 S.E.2d 888
(1979); Sharpe v. Sharpe, 256 S.C. 517, 183 S.E.2d 325 (1971); Mixson v. Mixson, 253 S.C.
436, 171 S.E.2d 581 (1969); see also Courie v. Courie, 288 S.C. 163, 341 S.E.2d 646 (Ct.App.
However, if the parents agree on joint custody, the court will usually approve the agreement.
DECIDING CHILD CUSTODY IN SOUTH CAROLINA
As in all states, the legal standard for a decision on child custody is the best interests of the child.
The family courts feel that the parents are the ones best suited to determine child custody issues
and strongly encourage the parties to develop a parenting plan between themselves. When the
parents cannot agree, either party may petition the family court for a determination. In all
custody controversies, the controlling considerations are the child's welfare and best interests. In
reaching a determination as to child custody, the family court will consider how the custody
decision will impact all areas of the child's life, including physical, psychological, spiritual,
educational, familial, emotional, and recreational aspects. Additionally, the court must assess
each party's character, fitness, and attitude as they impact the child. 342 S.C. at 330, 536 S.E.2d
at 430. When determining the best interests of a child the South Carolina family court will
consider several factors, including: who has been the primary caretaker; the conduct, attributes,
and fitness of the parents; the opinions of third parties such as the guardian ad litem, expert
witnesses, and the children; and the age, health, and sex of the children. The court may consider
the child's reasonable preference for custody. The court shall place weight upon the preference
based upon the child's age, experience, maturity, judgment, and ability to express a preference.
Usually the child will need to be at least twelve years old before the court will consider the
child's preference. However, this is only one factor in the decision and south Carolina does not
allow a child to decide custody. The court will also consider evidence of domestic violence, the
current situation and nature of the divorce, and the religious faith of the parents. The court will
not award custody based upon the gender of the parent.
Father's Child Cusotdy Rights in South Carolina
South Carolina has abolished the "tender years" doctrine. What this means is that there is no
automatic preference by the Judge for the mother over the father even when a child is very
young. Rather, the preference is now the party that has been the "primary caretaker" of the child.
This preference results in the mother usually being awarded primary physical custody of the
child and the father standard visitation. However, the South Carolina courts will award a father
custody in appropriate situations.
"The record before this Court reflects, not a gender bias against Mother or the fact that she is a
career-oriented woman but, rather, a case in which, as between two parents who are fit to be the
custodial parent, the best interests of the child will be served by awarding custody of the child to
Father. The preponderance of the evidence clearly supports the Family Court's ruling and,
accordingly, we affirm the award of custody to the father.
Your Role in Child Custody
Your child custody attorney is your tools to express your side and to present your facts and
arguments as to why you should be awarded custody of your child? It is your responsibility to
provide the proper ammunition the lawyer needs to persuade the family court in your favor.
Providing your attorney with too little to go on or a weak case to base an adequate defense and
you will lose even with the best attorney in the world. It is necessary to present a well thought
out and persuasive child custody case to the judge. It’s your responsibility to provide your
attorney and the GAL with relevant persuasive arguments and facts. Nobody knows the facts as
well as you and it's up to you to provide your attorney with any and all facts in your favor. The
attorney is not an investigator, that is your role.
THE ROLE OF THE GURADIAN AD LITEM
In the landmark opinion, Patel v. Patel, 347 S.C. 281, 555 S.E.2d 386 (2001), our supreme court
reviewed the historical development of the role of the GAL in South Carolina:
A guardian ad litem, as the later phrase suggests, is a guardian for litigation. Traditionally, GALs
were lawyers appointed by the court to appear in a lawsuit on behalf of a minor or incompetent.
Over time, the role of the guardian was defined by statute as well as by common law. Lay
persons as well as lawyers were appointed by the court in cases to protect those the court or
legislature deemed could not protect themselves....
The GAL functions as a representative of the court, appointed to assist the court in making its
determination of custody by advocating for the best interest of the children and providing the
court with an objective view. Fleming v. Asbill, 326 S.C. 49, 483 S.E.2d 751 (1997); Townsend
v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996). Standard setting for GALs in this "new" role
has been very ad hoc. The legislature has set standards for a GAL appointed in abuse and neglect
cases. However, there has been no comprehensive or coherent approach for the setting of
standards for the use of GALs in private custody disputes....
Patel at 287-88, 555 S.E.2d at 389 (footnote omitted). Due to the new role guardians play, and
"[w]hile a more complete approach [was] being examined by the three branches of government,"
the Patel court "set forth some base line standards":
In connection with developing a recommendation to the family court, a GAL shall: (1) conduct
an independent, balanced, and impartial investigation to determine the facts relevant to the
situation of the child and the family, which should include: reviewing relevant documents;
meeting with and observing the child in the home setting and considering the child's wishes, if
appropriate; and interviewing parents, caregivers, and others with knowledge relevant to the
case; (2) advocate for the child's best interest by making specific and clear recommendations,
when necessary, for evaluation, services, and treatment for the child and the child's family; (3)
attend all court hearings and provide accurate, current information directly to the court; (4)
maintain a complete file with notes rather than relying upon court files; and (5) present to the
court and all other parties clear and comprehensive written reports, including but not limited to a
final report regarding the child's best interest, which includes conclusions and recommendations
and the facts upon which the reports are based....
At What Age Can a Child Decide
One of the most frequent searches on the Internet on family law issues is the question: "At what
age can the child decide where he/she will live?" The answer in South Carolina is that the child
can decide at age 18. When the child legally becomes an adult, the court no longer has control
over the child. Until then, only the judge ultimately decides.
There are, however, several ways for the child to have some influence.
The child can talk to the parents about the decision. As much as I don't like involving children in
these decisions, sometimes a child is mature and has a reasonable basis for a change in living
arrangements. What's potentially damaging is for a parent to want a change of custody and then
recruit the child to become an advocate. That should be avoided. Sometimes parents try to act
like the request originated with the child, but it usually doesn't. Another bad situation is when a
child works the parents against each other.
A study can be done for the court. The GAL can interview the child and evaluate the what the
child has to say. The GAL ultimately makes a recommendation from all the information gathered
from a variety of sources.
An attorney can be appointed to represent the child in some cases, but the attorney isn't free. The
parties have to come up with the funds to pay the attorney, in addition to paying their own
Sometimes, a court will appoint a psychologist to interview or work with a child. That gives the
child an outlet, but it's not free either.
In South Carolina divorce or custody cases, or for visitation issues, the court will often order
mediation. That is a pretty effective process that has the two parents meet with a mediator to
discuss and try to resolve custody or visitation issues. Again, it is not free.
The child may be permitted to visit with the judge in chambers and discuss the situation without
the parents and attorneys being present, but the judge will always make the ultimate decision.
Most judges are experienced enough to detect when a child has been programmed or when a
child is trying to manipulate the situation. There is no guaranteed result when a child actually
gets into a one-on-one with the judge. Nevertheless, the judge can gain some valuable insight
into the family by an interview with a child in chambers.
Bottom line is that if the parties cannot agree, the judge will decide with the best interests of the
child being the guidepost.
How Does the Judge Decide Child Custody?
Here are some of the elements a judge may consider in deciding a child custody case.
Primary caregiver. In South Carolina there is a presumption that the party that has been the
primary caregiver of the child should be awarded primary physical custody.
Drug Abuse. It is fairly standard for the judge to order that both parties take a hair strand drug
test and submit it to the court. Parents who abuse drugs or alcohol will not be awarded custody.
Wishes of the child. The judge may take the wishes of the child into consideration. While this is
just one element, the older the child the more weight the judge is likley to give to the child's
Past custody. Who has historically had custody of the child and has that party provided a safe
and stable environment for the child.
Parental behavior. Has there been domestic violence, excessive use of alcohol, criminal
convictions, parental kidnapping, or any behavior that endangered the child
Encourages a relationship with other parent. Which parent will best foster a relationship between
the child and the other parent. Has one parent withheld visitation to “punish” the other parent or
made derogatory comments about the other parent.
Home Environment. Which parent offers the child the best stable home environment. This
includes who can best supervise the child at home, the living conditions, what other adults and
children, especially siblings, are in the home, the neighborhood where the home is located, which
parent will be able to better continue the same school and friends.
Employment. Which parent is better able to financially provide for the child. If the parent works,
what arrangements are there for babysitters, day care, etc. Does one parent travel.
Relatives. Does one parent have relatives that have a close relationship with the child.
Health. Does the child or a parent have any health issues that would impact the decision on
custody. Which parent normally makes doctor appointments and accompanies the child to those
Religion. Which parent will expose the child to spiritual guidance and growth.
Relationship with child: The love, affection and emotional ties between the parent and child.
With which parent does the child bond more, spends more time with the child, bathes and puts a
young child to bed, prepares the child's meals and to which parent does the child openly show
signs of affection.
Character. The judge will have to evaluate in a short period of time the character of the parties
and whether one parents morality and credibility makes them the best parent to award custody.
Child Custody Case Law
The paramount and controlling factor in every custody dispute is the best interests of the child.
Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999)
In determining custody, the family court "must consider the character, fitness, attitude, and
inclinations on the part of each parent as they impact the child[ren]." Woodall, 322 S.C. at 11,
471 S.E.2d at 157. Because all relevant factors must be taken into consideration, the court should
also review the "psychological, physical, environmental, spiritual, educational, medical, family,
emotional and recreational aspects" of each child's life. Id. In other words, the totality of
circumstances unique to each particular case "constitutes the only scale upon which the ultimate
decision can be weighed." Parris v. Parris, 319 S.C. 308, 310, 460 S.E.2d 571, 572 (1995).