Child Custody

Absent an agreement or court order regarding custody, both parents are equally entitled to the custody of their children.  S.C. Code Ann. § 20-7-100 (Supp.).  If the parties are unmarried then the mother is presumed to be the custodian in the absence of a contravening Order of the court.  “Legal custody” refers to the decision-making authority with regards to the child or children.  A parent who is awarded legal custody may not be completely free to move whenever or wherever he or she wishes without permission from the court or without modification of a visitation Order by the Court.

The two (2) basic types of custody are sole and joint custody.  Sole custody is where one parent is awarded legal and physical custody of the child and the other parent has visitation with the child.  Joint custody is the sharing of the residential care of the child, something more than the traditional visitation.  An award of joint legal and physical custody means that both parents make decisions regarding activities, discipline, diet, maintenance social interactions and health care.  Courts generally do not divide custody except under exceptional circumstances.

The best interest of the child is the controlling factor in awarding custody of minor children.  The family court evaluates the each parent’s ability to provide a stable and loving home for the child or children.  In addition, the court considers each parent’s character, conduct (including domestic abuse), fitness, and the attitude on the part of each parent.

If the parents cannot agree what custody is in the best interest of their children, then custody disputes may require judicial intervention.  However, the family court may not have jurisdiction over a child custody dispute if the parents and the child do not all live in South Carolina.  A court that makes a child custody determination has continuing jurisdiction as long as it continues to have jurisdiction under the laws of its state and the child or any contestant continues to live there.  28 U.S.C. § 1738.  There are some circumstances, where South Carolina courts can domesticate other states’ Orders.

A psychological (or de facto) parent can also be eligible to gain custody of the child.  It is usually defined as a person who has, on a day-to-day basis, undertaken a parental role through interaction, companionship, interplay, and mutuality, that fulfills a child’s physical and psychological needs and provides for a child’s emotional and financial support.  The standard to be applied is whether compelling circumstances exist to overcome the presumption that a fit, legal parent acts in the child’s best interest, and of course, visitation must actually be in the child’s best interest.  Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct. App. 2006).

A Guardian Ad Litem (GAL) may be appointed to function as a representative of the court to protect the best interests of the child.

Next -> Visitation