Child Support/Custody

Child Support/Custody
Child Support

Stuck in the middle. Used as leverage. Crying. Confused. Feeling guilty. When proceedings in the Family Court involve the most vulnerable in our society, extra care must be taken.

From top to bottom, we at The LaMantia Law Firm have children. Rest assured that your children will be looked after as though they were our own, from the moment you become part of our family, to long after the last legal document is signed and stamped by the Court.

In South Carolina, both parents equally share the duty to support their children from birth to the moment the child is deemed emancipated. Certain circumstances, however, may necessitate that one parent bears a greater burden than the other.

South Carolina Child Support Guidelines

Unless otherwise agreed upon by the parties the amount of child support to be paid by one parent to the others is governed and determined by the South Carolina Child Support Guidelines.

Click here to visit the South Carolina Child Support Calculator, but please be aware that this calculator is to be used only as a guideline. To understand all of the variables in calculating support, consult with one of the attorneys at The LaMantia Law Firm.

Even with the formulaic aspects of child support awards in South Carolina, the Family Court may deviate from a presumptive amount, but not without sufficient justification and reason.

Deviation from the Child Support Guidelines

Generally, departure from the presumptive amount of support as set forth by the South Carolina Child Support Guidelines is the exception, not the rule. South Carolina law states that while the trial court cannot ignore the guidelines, the court may deviate from the presumptive amount of support.

In considering whether to deviate from the presumptive amount of child support as provided by the guidelines, the Court will look at fourteen different factors:

  1. The educational expenses for the children or spouse, to include those expenses for private, parochial or trade schools, other secondary schools, or higher education where there is tuition and other related costs.
  2. The equitable distribution of property.
  3. The extent of consumer debts, if any, owed by both parties.
  4. Whether or not the family has more than six children.
  5. Unreimbursed extraordinary medical or dental expenses for the noncustodial or custodial parent.
  6. Mandatory deduction of retirement pensions and union fees.
  7. Support obligations for other dependents living with the noncustodial parent.
  8. Child-related unreimbursed extraordinary medical expenses.
  9. Monthly fixed payments imposed by a court or operation of law.
  10. Significant available income of the child or children (think “child actor.")
  11. Substantial disparity of income, in which the noncustodial parent's income is significantly less than the custodial parent's income, making it financially impracticable to pay what the Guidelines indicate the noncustodial parent should pay.
  12. Alimony.
  13. Agreements reached between the parties, the Court retains authority to review such agreements and either approve or overrule.
  14. Non-court-ordered child support from another relationship.

The Court will also deviate from the guidelines in cases in which combined parental annual income exceeds $180,000. In such cases, child support amounts will be decided on a case-by-case basis.

Duration of Child Support Obligation

Absent an agreement that says otherwise, the supporting parent's duty to provide child support to the child ceases when that child is “emancipated." In short, “emancipation" comes about when the child is legally deemed self-sufficient.

Generally, a child is emancipated when he or she reaches eighteen (18) years of age or graduates high school, whichever is later. A child may also be considered emancipated when he or she is married or otherwise becomes self-supporting, unless the child is disabled or some other exceptional circumstance exists. In those cases, the duty to provide child support continues until the disability or extenuating circumstance ceases.

Custody

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:

  1. 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.
  2. 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.
  3. Relinquishment Circumstances: The circumstances under which temporary relinquishment of parental rights occurred.
  4. 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.

Visitation

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 are 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.

At The LaMantia Law Firm, we 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.

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