Child Custody & Visitation

Father Lifting Young Son
As a parent, the prospect of living for even a moment without your child is difficult to absorb.   You worry about whether your child is safe.  You worry about whether your child is healthy.  You worry about how your child is affected by your legal proceedings.  It is a natural cause for worry, but rest assured that The LaMantia Law Firm will always keep the best interests of your child at the forefront of our minds and at the heart of everything we do.

In the Palmetto State, the Family Court may award parents–and, in some cases, non-parents–either sole, joint or shared custody of a child. In the interest of creating a stable home for the child, the Court will likely choose one parent as the parent of primary residence.

Custody

In all child custody and visitation matters, the best interest of the child is the primary and controlling consideration of the Court.  Generally, when presented with a question regarding the custody of a minor child, the Court will consider the following factors:

  • The welfare of the child and what is in his or her best interest
  • The age, health, and gender of the child
  • The child’s reasonable preference, if the child is of suitable age and maturity
  • The psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects of each child’s life
  • Which parent has historically been the child’s primary caretaker
  • The conduct, character, fitness and inclinations of each parent
  • The attributes, resources and attitudes of each parent
  • The existence of any domestic violence, specifically physical and sexual abuse
  • Any immoral conduct of either parent that is detrimental to the welfare of the child
  • The religion of the parents and child
  • The quality of educational opportunities available to the child
  • A parent’s expressed desire to relocate if awarded custody
  • Any written agreement of the parties
  • The opinions of third parties, including the Guardian ad Litem and expert witnesses

Rarely does any single factor determine the outcome of a child custody dispute.

Three factors that the Court does NOT considered are gender, race, or the “Tender Years Doctrine” — the latter of which traditionally created a presumption that, absent specific circumstances, smaller children should be placed with their mother.  The Tender Years Doctrine was abolished in South Carolina in 1995, leaving both parents on equal footing at the start of a custody dispute.

Custody to Non-Parents & Guardians

In South Carolina, the Family Court may award custody to non-parents and guardians if the child’s natural parents are deemed unfit or otherwise relinquish their parental rights.  As always, the best interest of the child controls, and the Court may appoint a Guardian ad Litem to represent the child in the matter.  Generally, in a contest between a parent and a non-parent or guardian, the Court will consider four factors:

  • Fitness: The extent to which the parent has proven him or herself to be a good and fit parent, able to care for the child and to provide the child with a good home.
  • Prior Contact: The amount of contact–visits, financial and other material support–the parent has had with the child while the child was in the care of the third party.
  • Relinquishment Circumstances: The circumstances under which temporary relinquishment of parental rights occurred.
  • Attachment: The degree of attachment between the child and the temporary custodian.

While a rebuttable presumption generally favors the parent over a third party, the best interest of the child controls.  If a third-party non-parent can show that he or she has served as a “psychological parent” to the child, the Court may find in favor of the non-parent.  A “psychological parent” is a person who, on a continuing everyday basis, fulfilled or continues to fulfill a child’s psychological and physical needs like a parent and provides for the child’s emotional and financial support.

Modification of Custody

All custody orders are modifiable, and the court which entered the final custody order retains the authority to modify a prior custody arrangement.  For the court to determine that custody should be modified, three things must be established:

  • The circumstances have changed considerably and substantially
  • Those considerable and substantial changes must have occurred after the initial custody arrangement was established by the Court
  • Those considerable and substantial changes substantially affect the best interest and welfare of the child in question.

Regardless of whether the existing custody arrangement is sole, joint or shared, and regardless of the nature of the desired custody arrangement after modification, the party requesting the modification has the burden of establishing these three factors, and showing that there has indeed been a material change of circumstances substantially affecting the child’s welfare.

Mere disagreements between parents or one parent’s dissatisfaction with the status quo are generally not considered to be a substantial change of circumstances that would warrant a change of custody, unless those disagreements or that unhappiness has had an adverse effect upon the child. Some possible grounds for a change of custody include the following:

  • Interference with the Relationship Between the Child and the Noncustodial Parent.  A refusal by the custodial parent to facilitate a positive relationship between the noncustodial parent and the child can be a reason to change custody.
  • Changes in Parenting Skills or Lifestyles.  If one parent is able to do a better job raising the child than the other parent, a change of custody can result even if both parents are considered fit and suitable to be primary custodians.
  • Abandonment.  If the custodial parent ceases to be the child’s primary caretaker the Court may change custody.
  • Immoral Conduct.  A change of custody can result from a custodial parent’s immoral conduct if that conduct affects or is likely to affect the welfare of the child.
  • Child is “Educationally Endangered”. If a decline in the child’s educational performance occurs and the custodial parent refuses to obtain further testing and assistance despite the indication of a learning disability, grounds for a change in custody may arise.
  • Remarriage of the Custodial Parent. Remarriage in itself most likely will not warrant a change of custody, but if a betterment to the child will result the Court will consider it.
  • Relocation of the Custodial Parent Out of State.  While the South Carolina Supreme Court has specifically stated that relocation is “not alone a sufficient change in circumstances,” questions will arise as to whether the relocation is in good faith, and how the relocation will affect the child.  For more, see our section on relocation.

In reality, South Carolina Courts have not yet provided a specific test for determining the best interest of a child in connection with a request for modification of custody.  Still, several lower-level court cases have shed light upon and attempted to establish guidelines for such a determination. Those factors include:

  • A parent’s immaturity and inability to grasp the responsibilities of parenthood
  • Lack of job stability
  • Subordination of the child’s individual happiness to that of his or her own
  • Unhealthy influence on the child
  • Dependence on his or her family
  • Exposure of the child to inappropriate moral surroundings and an unstable home environment
  • Failure to properly prioritize the child’s life, resulting in absences and lateness at school
  • Exposure of the child to negative interactions between parents and step-parents
  • Preventing the child from being independent and developing on his or her own

When it comes to modification of a custody determination, it is best to have competent and experienced counsel in your corner.  At the LaMantia Law Firm we are eager to help.

Visitation

In South Carolina, the parent without primary physical custody has the right to reasonable visitation, to be scheduled as agreed upon by the parties or as ordered by the Court.  As with all matters involving children, the best interest of the child is the paramount consideration in all visitation cases.

In some situations, a parent may forfeit his or her right to visitation by engaging in conduct that is harmful to the child’s welfare or morals.  Likewise, the Court may impose restrictions or conditions on visitation if conduct could bring harm to the child, though absolute denial of visitation is rare.  Instead, supervised visitation may be ordered, as well as restrictions or prohibitions on overnight visitation.

When considering visitation matters, it is important to remember that every case is unique, and different children have different needs.  Some families and children thrive when the noncustodial parent has visitation every other weekend, while others thrive when parents split time with the children on a week-on/week-off basis.

As visitation is primarily for the benefit of the child, a noncustodial parent’s obligation to pay child support is independent of visitation rights.  In other words, a parent cannot withhold support if visitation is denied, and a parent cannot withhold visitation if support is unpaid.

If one parent does deny the other parent reasonable visitation with the child, there are several remedies available.  The court may:

  • Award extra visitation to compensate for lost time, in a manner that does not interfere with the best interests of the child
  • Award custody or primary residence to the noncustodial parent, if it is in the best interest of the child.  (This is unlikely, unless the denial of visitation has been egregious.)
  • Punish the custodial parent by contempt of court or other remedies as the Court deems appropriate

Guardian ad Litem

In many cases, the Court will appoint a Guardian ad Litem to represent the best interest of the child. The Guardian ad Litem will perform an independent investigation of the circumstances surrounding the child, and will visit the homes of both parents, as well as conduct interviews with parents, family members, teachers, counselors, and other people who have insight into what the child needs to thrive.  After the investigation, the Guardian ad Litem will submit a written report to the Court indicating their findings.  The Family Court judge will take the report under serious consideration.

Conclusion

At the LaMantia Law Firm, all of our attorneys and staff are parents.  We cannot imagine being kept from our children, and we understand the frustration and stress that come from being in an uncertain situation where issues of custody and visitation are unsetteld.  We are here to help — please contact us today for a free initial consultation.