As a parent, even the prospect of living for 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 here at The LaMantia Law Firm, we always keep the best interests of your child or children 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. Regardless, in the interest of creating a stable home for the child, the Court will likely choose one parent and household as the parent and place of primary custodianship and residency.
In all child custody and visitation matters, the best interests of the child or children involved is the primary and controlling consideration of the Court. Generally, when presented with a question regarding custody of a minor child, the Court will consider ten factors:
- The welfare of the child, and what is in his or her best interests
- The child’s reasonable preference, if the child is of suitable age and maturity to make such a choice
- The existence of any domestic violence, including physical and sexual abuse
- Which parent has been the historical primary caretaker
- The character, fitness, attitude and inclinations of each parent
- The psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects of each child’s life
- Mother’s role as primary caregiver since the child’s infancy and whether a change in custody would isolate the child from his or her mother, considered against the mother’s efforts to include father in the child’s life.
- Any immoral conduct of either parent, shown to be detrimental to the welfare of the child
- Religion of the parents and child
- Any written agreement of the parties
Three factors NOT considered by the court 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, and was abolished in South Carolina in 1995, leaving both parents on equal footing at the start of custody proceedings.
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 interests 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 and the parent usually prevails, the best interests of the child control, and if the third-party non-parent can show that he or she has served as a “psychological parent” to the child, the Court may find in the non-parent’s favor. A “psychological parent” is a person who, on a continuing everyday basis, fulfilled or continues to fulfill a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support.
Modification of Custody
All custody-related questions 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 changed, three things must have occurred:
- The overall circumstances must 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 must substantially affect the best interests and welfare of the children 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 those three factors above, 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 enough to be grounds for a change in custody, unless those disagreements or that unhappiness has somehow had an adverse effect upon the children. Some possible grounds for a change in custody include the following:
- 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 with Relocation. Remarriage in itself most likely will not warrant a change of custody, but questions arise if that remarriage requires the relocation of the child outside South Carolina.
- 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 interests of children 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:
- 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 prioritize the child’s life properly, 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. Here at The LaMantia Law Firm, we are eager to help.
In South Carolina, the parent without primary 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 kids, though, the best interests of the child is paramount in all visitation decisions.
In some cases, though, a parent may forfeit his or her rights 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 one parent shows that the other could bring harm to the child, though absolute denial of visitation is rare. In fact, so rare is the absolute denial of visitation that the Family Court may award visitation to a parent who previously committed domestic violence, so long as the safety of the child can be assured. Supervised visitation can be ordered, as can a restriction or prohibition on overnight visitation.
In many cases, the Court will appoint a Guardian ad Litem to represent the best interests of the child. The Guardian ad Litem will perform an independent investigation of the situation 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 report to the Court, saying what they believe the Court should order, and why. The Family Court judge is not required to do what the Guardian ad Litem says, but will take the report under serious consideration.
When considering visitation, it is important to remember that every case is different, and different children and families 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.
Still, unless the Court states otherwise, visitation is a parental right. As visitation is mostly for the benefit of the children, 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 denied.
However, if one parent does deny the other parent reasonable visitation with the child, the Court has a number of options. 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 the best interests 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
Here at The LaMantia Law Firm, each and every one of our attorneys and staff are parents. We cannot imagine being kept from our children, and we understand the frustration and stress that comes from being in a situation when issues of custody and visitation are uncertain. We are here to help — contact us today for a free initial consultation.