Divorce Differently |
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When you are trying to figure out child custody with your co-parent, you are really trying to define two things:
Coming to an Agreement Until there is an agreement for custody in place, each parent has equal rights and access to custodial time with the children of the marriage, with one exception: if you were never married to your child’s other parent, South Carolina law gives a mother sole custodial rights until another order is issued by a court on child custody. Coming to an agreement outside of court is always preferable to having a judge determine your custody arrangement. In an agreement, you and your co-parent maintain control over exactly what your custody arrangement looks like and can consider any factors that affect your children’s best interests. In South Carolina, an approval hearing is set after the agreement is in place so that a judge can review and approve the agreement as an order of the court. Physical Custody Physical custody is the amount of time a child spends with each parent. Joint physical custody is when parents share nearly equal amounts of time with the children. That can look like a week-on/week-off schedule or something else. While South Carolina statutes state that the family court must consider all custody options, including joint custody, the reality is that South Carolina case law disfavors true joint physical custody. The South Carolina Court of Appeals and Supreme Court have issued opinions opining that joint physical custody doesn’t create stability for a child. If you want joint physical custody, it is best that you come to an agreement because you are less likely to be granted joint custody by South Carolina courts in a child custody trial. Sole physical custody is when one parent has all of the time with the child. The non-custodial parent may have visitation, but does not have a significant amount of time with the child. Shared physical custody is the most common type of shared parenting time in South Carolina. This is when one parent has “primary” physical custody and the other parent has “secondary” physical custody, meaning the child lives primarily with one parent but visits the other parent regularly. Legal Custody Legal custody is the decision-making power regarding what’s in your child’s best interest for major decisions like education, medical, extracurricular activities, and religion. “Sole” legal custody is when one parent has the rights and responsibilities to make major decisions affecting the child’s best interest and does not have to consult or confer with the noncustodial parent. Joint legal custody is when both parents share the rights and responsibilities to make major decisions affecting the child’s best interest. The parents have to confer in good faith to come to a joint decision about what is in the child’s best interest. South Carolina does not favor mothers over fathers in a child custody determination and both parents are on an equal footing when determining child custody for a child of their marriage. Typical Parenting Time (Custody) Schedules Some common parenting time schedules upon which we see families agreeing and executing are: a “traditional” every other weekend from Friday until Sunday, a longer weekend from Thursday until Sunday or Monday, and week-on/week off. If one parent has an every other weekend schedule with their child, that parent will often have a weekly afternoon visit with the child from school pick-up until bedtime (or overnight), which makes it easier for the child and the parent not to go too long between seeing each other. Holiday Schedules In a typical holiday schedule, the holidays are equally divided between the parents and then each year the schedule alternates, so each parent can celebrate major holidays with the child every other year. For example, for Winter Break one parent will have the children from when school releases until the afternoon of Christmas Day (if you celebrate Christmas); the other parent will have the children from the afternoon of Christmas Day until the children return to school in the new year. The following year, the parents would alternate the schedule, with the parent who did not celebrate Christmas morning with the children the prior year having Winter Break parenting time first. Factors Considered If you are in court or coming to an agreement, the main consideration is what is in the best interests of the child. South Carolina law sets forth seventeen (17) factors to consider in determining child custody, which are listed below (from S.C. Code §63-15.240(B)): (1) the temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) the preferences of each child; (4) the wishes of the parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child; (6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders; (7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) any effort by one parent to disparage the other parent in front of the child; (9) the ability of each parent to be actively involved in the life of the child; (10) the child's adjustment to his or her home, school, and community environments; (11) the stability of the child's existing and proposed residences; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child; (13) the child's cultural and spiritual background; (14) whether the child or a sibling of the child has been abused or neglected; (15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child; (16) whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and (17) other factors as the court considers necessary. Contrary to popular belief, there is no certain age when a child may decide where or with whom they live. If you are going before a judge, a child’s reasonable preference for custody must be considered by the judge, placing weight on the child’s age, experience, maturity, judgment and ability to express a preference. An older child or teen’s reasonable preference for custody will likely be given more weight than a younger child’s preference. “Restraining Orders” or Restraints Against Parents in Custody Orders In South Carolina, it is customary for courts (and custody agreements) to contain restraints against both parents. These restraints typically include restraints against disparaging the other parent or other parent’s family in front of the child or allowing others to do so in the child’s presence, consuming alcohol to excess and using illegal drugs with the child present, traveling outside of the state with the child without notifying the other parent of the itinerary, calling anyone other than the parents “mother” and “father,” and the like. Each county typically has standard restraints that judges like to see included in each custody agreement. If you’re faced with determining child custody in South Carolina, please click below to schedule a consultation or reach out to us. We know how precious your children are to you and we are here to guide you toward a resolution. Comments are closed.
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AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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