Securing Child Custody & Visitation

The Judge, that’s who! The courts in England were deciding who would get custody of children more than 500 years ago. The Pilgrims then brought the English system of the law (called the “common law”) to America. Today, South Carolina can trace the roots of its legal system all the way back to England. In the 1800’s custody was almost always awarded to the Father (if he wanted the kids). As late as the 1920’s, South Carolina courts were still presuming that the Father had a superior right to the custody of his children. The judges back then assumed that the Father was more likely to support his children. The judges back then also assumed that women could not earn enough money to care for their children. In the 1950’s and the 1960’s, the judges were presuming that the Mother was more likely to be able to take care of small children. This was called the Tender Years’s Doctrine. 

Today, by law, neither the father nor the mother is entitled to a presumption that one parent is more likely to be a better parent than the other. In South Carolina Family Courts, in custody matters, the father and mother are both equally entitled to ask for the custody of a child at the start of a custody case. When the Family Court analyzes the right to custody as between a father and mother, the law requires that both parents are given equal consideration before the Judge decides the case. The Family Court Judge, after weighing all the evidence, then decides who gets the children. 

Only the Family Court has jurisdiction. The Family Court has the power to decide custody matters concerning children. This “power to decide” is called “jurisdiction.” The Family Court has no jurisdiction over the custody of a child who reaches eighteen years of age (an 18 year old is legally no longer a “child”). Only children can be the focus of a custody case in Family Court. Custody is always decided in the Family Court, regardless of whether or not the parents are married. Custody can be the only issue in a Family Court case, or it can be one issue of many issues in a divorce case. The Family Court also has “continuing jurisdiction” in custody matters. What this means is that the Family Court can (and will) continue to decide matters of custody, even years after the parents have obtained a final divorce. Custody can only be decided by a Family Court Judge after a lawsuit (also called an “action”) is filed in Family Court. 

Yes you can. Many custody disputes do not require judicial intervention. If both parents can agree on what custody arrangement is in the best interests of their children, the judicial system will usually stay out of the matter. However, if either of the parents want a custody agreement to be enforceable, they will have to go the Family Court. An agreement (not approved by a Judge) concerning the custody of children may be overturned by the Family Court if the judge determines that the agreement is not in the best interests of the children.

Child Snatching is the unapproved movement of a child from one location to another by one parent for the purpose of denying the other parent custody or otherwise interfering with the other parent*s ability to exercise parental rights, such as visitation. Sometimes, child snatching is legal. Sometimes, child snatching is illegal. 

Generally, if there is no existing court order concerning custody, both parents (if married to each other) are equally entitled to the custody of their children. The law states that the mother and father are the joint natural guardians of their minor children. This means that both parents are equally charged with the welfare and the education of their minor children. The law goes on to state that both the father and mother have equal power, equal rights, and equal duties. Neither parent has any right greater than the right of the other parent concerning the custody of their child. 

However, the law makes an exception for children born outside of marriage. If there is no court order, an un-married mother has sole custody of her children born outside of marriage. In such a case, if the father wants any rights at all (such as visitation), he has to file a “Paternity Action” and ask the Family Court for parental rights. 

Because both the father and the mother (when married to each other) have equal rights to custody, usually either parent can move the children to another location without directly violating any law. In other words, under normal circumstances, “You cannot kidnap your own children.” Unless, of course, there is an existing Custody Order. But, just because child snatching may be legal (under some circumstances), does not mean that it is the right thing to do. There are great risks in moving children from their home. If a custody hearing is eventually held, the trial judge may conclude that the parent who moved the child acted contrary to the child*s best interest, especially if the move was secret or otherwise interfered with the exercise of visitation by the other parent. 

Child snatching is a crime when a valid custody order exists. It is a criminal act to move a child within South Carolina or outside this state when a valid custody order exists. This is a crime that is prosecuted in criminal court (General Sessions Court), not Family Court. A parent that is found guilty of child snatching will have a felony conviction on his or her record and could be imprisoned up to five years. The Family Court can also punish child snatching. This power to punish is called the contempt power of the Family Court. If the Family Court finds the offending parent in contempt of court, then the Judge can impose a jail term of up to one year (without a jury and without the right to appeal). Child snatching is also a federal crime. 

There are two basic types of custody: sole custody and joint custody.

“Sole Custody” describes the most common form of custody. One parent (the custodial parent) is awarded sole custody of the child and the other parent (the noncustodial parent) has visitation with

the child, typically on alternating weekends, portions of holidays, and a few weeks in the summer.

“Joint Custody” (also referred to as shared parenting or co-parenting) can involve “joint legal custody” or “joint physical custody” or both. Joint legal custody is the equal right of both parents to make decisions regarding the child. Joint physical custody is the sharing of the residential care of the child. This may or may not involve an equal division of physical custody of the child, but it typically provides both parents with something more than the traditional visitation schedule awarded the noncustodial parent in sole custody situations. 

If the parents cannot agree as to which type of custody is best, the judge may award sole custody of the children to one parent or the other. Joint custody can be an option if both parents agree to it. May judges will award “joint legal custody” at a temporary hearing, and then decide a visitation schedule. 

The best interest of the child is the number one deciding factor. Every Family Court in every state, including South Carolina, recognizes the principle that the best interest of the child is the controlling factor in custody cases. The problem is defining and explaining what is the best interest of the child. Every custody case is different. It is impossible for any lawyer to predict the outcome of a custody case with 100% certainty. One Judge stated that the difficulty is not in the recognition of the “best interest of the child” rule, but in the application of the rule to the facts of the case. The law states that in order for the judge to determine what is best for the child, the judge must consider of all of the circumstances of the particular case and, the judge must apply many factors. 

A judge will consider anything that might relate to the fitness of a parent or the best interests of a child. Seldom does any one factor determine the outcome of a custody case. In determining custody, the Family Court Judge must consider the character, fitness, attitude, and inclinations on the part of each parent as they impact the children. Because all relevant factors must be taken into consideration, the court will review the psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects of each child*s life. In other words, the Judge looks at the totality of circumstances unique to each particular case. Some of the factors that may be considered by the judge are explained below: 

Fitness of Parents. The relative fitness of parents is an important issue in custody litigation. If one parent is more fit than the other, most trial judges will decide that the children should be given to the parent that is more fit than the other. If one parent is considered unfit to raise children and the other parent is fit, custody will obviously go to the fit parent. Some of the specific things that tend to prove unfitness are: drug abuse, habitual drunkenness, emotional instability, current psychiatric care, and attempted suicide. Other behaviors that are not automatic proof of unfitness are: smoking and the existence of a past criminal record. However, the Court will still consider these things along with everything else. 

Primary Caretaker. There is an assumption that custody will be awarded to the parent who has

been the primary caretaker of the children, unless unfitness is proved or there is other evidence that the welfare of a child will be better served by awarding custody to the other parent. If one parent is the primary breadwinner and the other parent plays a more active role in the daily lives of the children, the family court may consider this as a factor in deciding custody. Although not the sole factor, the amount of time a parent spends with the child has traditionally been a relevant consideration in determining which of two fit parents receives custody. A parent who is more actively involved in the child’s daily life (car pooling; taking the child to doctors, baseball, swimming, soccer; going to parent\teacher conferences; signing report cards; doing yard work together; throwing birthday parties; getting the child up in the morning and off to school; making breakfast on weekends; cooking the family*s Sunday dinner, etc.) is more likely to be designated “the primary caretaker” by the Family Court. The parent who puts his or her active social life first, ahead of the child, will probably not be considered by the judge as the primary caretaker. 

Immoral Conduct. Cases involving questions of unfitness commonly focus on parental conduct that is considered “immoral.” Immoral conduct (including exposing children to an adulterous relationship) has always been a significant factor in determining custody in South Carolina. It is never a good idea to expose the children to your new girlfriend or new boyfriend, if you are still married. Exposing children to pornography or sexual paraphernalia is also not the way to convince the judge that you should be awarded custody. Immoral conduct that is shown to be detrimental to the welfare of a child is one of the many factors that the Judge will consider before making a decision about custody. 

Domestic Violence. By law, the Family Court is specifically directed to consider evidence of domestic violence in making child custody decisions. The Judge cannot use the fact that a victim of domestic violence left the marital home as the sole reason for denying custody. 

Telling Your Child Something Bad About the Other Parent. Do not make disparaging comments about the other parent to your child! The Family Court Judge will take this behavior into consideration when making a custody decision. In an actual South Carolina custody case, the judge awarded custody to the father in large part based on evidence of potential harm in the attempts of the grandmother (the mother’s mother) to weaken the child’s relationship with the father. The Judge also determined that the mother failed to recognize that the grandmother’s relationship with her and the child was having an adverse effect on the child. 

Not Providing a Good Home. A lifestyle demonstrating an inadequate commitment to “settling down” can serve as a basis for denying custody. In another actual case, the Judge said that he did not believe that the mother was a fit parent able to provide a good home for the child because she abandoned the child and the father when the child was one year old. She also abandoned a previous child that was born out of wedlock. She moved around a bit and had various relationships, including two more children that were born out of wedlock. Although she married the father of the two most recent children shortly before seeking custody of the child in this action, the court did not believe the sincerity of her commitment to “providing a good home.” 

Financial Resources. Superior financial ability and a network of support available to a parent can be a very important factor considered by a judge when awarding custody. 

Home Environment. In another case, a judge ruled that the father’s home would provide a better environment for the daughter. The father provided an apparently loving extended family, attentiveness to the daughter’s interest in outdoor activities, and the provision of a more stable and consistent home environment. 

Education. The education of a parent is a legitimate factor to consider. A judge awarded custody to a mother who had a degree in elementary education and eighteen hours of graduate study in early childhood development. She was also employed as a sixth grade teacher. 

Parenting Skills. Parenting skills are another legitimate factor to consider. A judge awarded custody to a father because he was the more tender, caring parent. 

Time Available for the Children. The amount of time a parent has to spend with the children has frequently been a consideration, but this factor may be less important than it once was, probably due to the proliferation of two-income (two-job) families and the widespread acceptance of daycare for young children. While parents who can stay home and care for children are preferred for custody if other considerations are relatively equal, the need to place a child in daycare will not usually defeat a parent’s claim for custody if there are more serious problems in the other parent’s home. However, in situations in which there is a notable distinction between the parties in the amount of time they will be able to devote to being with the children, a clear advantage appears to lie with the parent able to spend more time. 

Relatives. In general, the availability of relatives to help take care of the children is considered a plus. However, the court will give preference to the parent who is willing to spend more time personally caring for the child, especially if the judge considers the involvement of relatives or other third parties excessive. 

Opinions of Other People. The Family Court Judge is entitled to hear the opinions of anyone who has something relevant to say about the welfare of your children. It is also common for the court to consider the recommendations of the Guardian ad litem and expert witnesses (such as child psychologists). Courts may also receive and consider recommendations about custody from social service agencies, hospital professionals, and school officials. 

Guardian ad litem. In a private custody dispute, a “Guardian ad litem” is appointed to function as a representative of the court to assist it in protecting the best interests of the child. Usually the Guardian is a lawyer. The Guardian does not decide custody. Only a judge can decide custody. The Guardian is supposed to aid the court. Guardians are regulated by law. 

Experts. Testimony by health care professionals(such as psychiatrists and psychologists) frequently influence custody decisions. If one parent has a personality disorder, only an expert can properly testify as to how this will impact custody. 

Children’s Preferences. The judge is required to consider the child’s preference for custody. The court will place weight upon the preference based on the child’s age, experience, maturity, judgment, and ability to express a preference. There are many myths concerning when a child is old enough

to decide where he or she can live. There is no magic age in South Carolina, except 18. When your child turns 18, he or she can live wherever they desire. Until then, the general rule is: the older and more mature a child is, the greater weight a Judge will give the child’s preference, and the younger and less mature a child is, the less weight a Judge will give the child’s preference. Ordinarily, the wishes of a 16 year old are entitled to great weight in a Judge’s decision as to which parent should have custody. However, the desires of a 6 year old are probably going to be given little weight by the Judge. The wishes of a child of any age may be considered by the Judge, along with all the circumstances, but the weight given to those wishes will be determined by what is best for the welfare of the child. 

Age, Health, and Sex of the Child. Historically, a strong preference once existed in favor of awarding custody of young children to their mothers. This was called the Tender Years Doctrine. Since 1995, the Tender Years Doctrine can no longer be considered in deciding child custody cases in South Carolina. What this means is that there is no automatic preference by the Judge for the mother over the father when a child is very young. At the beginning of the case, even if the child is a little baby, both parents will begin (in the eyes of the law) as equal. Also, the Judge is not allowed by law to assume any pre-conceived notions before a case begins. For example, the Judge is not allowed to assume that a girl would probably be better off with her mother, or that an older boy would probably be better off with his father. 

Religious Beliefs. Religious beliefs and practices could be significant factors in custody decisions, but rarely is a custody case going to be decided on religion alone. When parents of different faiths marry and have children, the judge is usually not impressed when one parent suddenly thinks that his or her religion is better than the other parent’s religion or lack of religion. 

Any interested person can file a Custody Action and ask for custody. Most parent vs. non-parent custody battles are fought between grandparents and parents, but even someone not related to you or the child can ask the Family Court for custody of a child under the right circumstances. 

There is a legal presumption in favor of awarding custody to a biological parent. The law says that in a custody dispute between a parent and a non-parent, once the natural parent is deemed fit, the issue of custody is decided. Biological parents who are fighting each other for custody begin the battle as equals in the eyes of the law, but this is not the case if the battle is between a biological parent and anyone else. The rights of a parent are superior to any other person (related or not) in a custody dispute. The only way a non-parent can win custody over a parent is by proving to the judge that the biological parents are unfit for custody. 

In order to go back to court and regain custody after you have lost custody in a previous final court hearing, you must show the Judge that circumstances affecting the children have substantially changed. The Family Court has to power to change custody, even after a final divorce or a final custody hearing. However, there must be substantial reasons for asking for a change of custody. The most important consideration is whether transferring custody would be in the best interests of the child. There are no hard and fast rules for determining when to change custody. Every case is different. 

When one parent is awarded custody, the other parent is usually awarded “visitation.” There is no “Uniform Schedule of Visitation” in South Carolina. 

When the Parents Live Close to Each Other. “Close” is a relative term. When parents live within 20 to 25 miles of each other, the Judge will typically award “standard visitation” to the non-custodial parent. (Every Judge has a different idea of what is “standard.”) The parent receiving visitation can expect to see their children every other weekend, half of the school holidays and breaks, as well as 2 to 4 weeks in the summer. Sometimes the parents meet half-way to exchange the children. 

Sometimes one parent will drive all the way to get the kids, and the other parent will drive all the way to bring the kids back. The Judge can also order one parent to be 100% responsible for all transportation. Every case is different. No lawyer can predict exactly what a Judge may order. 

When the Parents Live Far Apart. Visitation will usually be ordered no matter how far apart the parents live from each other; however, the further apart they are, the more limited the visitation will be. If one parent lives in another state, the Court will usually order that the non-custodial parent receive half of the School Winter Break and significant time during Summer Break. If airline travel is necessary, one parent will have to travel with the child until old enough to fly as an “unaccompanied minor.” Every case is different, and such cases tend to be emotional and difficult for everybody. 

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