What Are South Carolina’s Custody Laws?

For over 28 years, I’ve been a child custody lawyer in Charleston, South Carolina. I wrote this article to give parents a comprehensive understanding of child custody laws in South Carolina. I explain the types of custody in South Carolina, the factors the family court considers when deciding custody, how to convince the court should you should be awarded custody, the role of a guardian ad litem in a custody battle, and how you should deal with your children and your spouse when you are involved in a custody dispute.

What Are The Types of Child Custody in South Carolina?

There are two types of child custody in South Carolina – sole and joint custody:

Sole Custody in South Carolina

Sole custody, which was favored under prior South Carolina case-law, is when a parent “has temporary or permanent custody of a child and . . . the rights and responsibilities for major decisions concerning the child, including . . . education, medical and dental care, extracurricular activities, and religious training.”

Joint Custody in South Carolina

Joint custody means both parents have equal rights and responsibilities for major decisions concerning the child. South Carolina law requires that the family court “consider all custody options, including, but not limited to, joint custody” in contested custody cases or if either parent requests joint custody.

What Are the Factors for Custody in South Carolina?

In the court’s final order concerning custody, the court must explain its reason for awarding, or not awarding, joint custody. In its reasoning, the court may consider the following factors:

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 the other parent, 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

Regarding “other factors,” the court may consider the opinions of others such as social service agencies, doctors and other medical providers, psychologists, and psychiatrists to name a few. A family court judge is required to consider the children’s preference for custody. Contrary to popular belief, there is no specific age when a child may somehow decide where the child should live. The greater the child’s age, experience, maturity, and judgment, the more likely the child’s preference will have some impact on the family court’s decision. Years ago, the family court oftentimes gave mothers the custody of their young children. This was known as the “Tender Years Doctrine.” In South Carolina, since 1995, the Tender Years Doctrine can no longer be considered in deciding child custody cases, and both mother and father are considered to be equally capable of caring for an infant or young child unless the court is shown otherwise. Regarding health, the family court may consider whether the child has any special needs and which parent is more able to meet those needs. Lastly, the court may consider the impact a parent’s gender may have, in relation to the child’s gender, on rearing the child.

What is a Guardian Ad Litem’s Role Regarding Custody Battle in South Carolina?

Whenever there is a dispute between parents over a child’s custody, the family court appoints a guardian ad litem to become involved in the case. In South Carolina, a guardian ad litem (GAL) is a formal advocate for a child involved in a court proceeding such as family court. Although the GAL generally is appointed at the beginning of a case, the court can appoint a GAL any time in the legal proceeding when the best interests of the children are at issue.

• The Guardian Ad Litem’s Job – The guardian ad litem’s job is to impartially investigate matters concerning the child and to communicate to the court about a child’s welfare and about what would be in the child’s best interest. The GAL will investigate the facts, participate in negotiations, and take a position in court as to the child’s welfare. The GAL also may become involved in the financial issues of a case when those issues affect the children.
• An investigation by the Guardian – In the investigation, the GAL interviews the parties in the case, reviews the paperwork filed with the court (the pleadings), visits the child’s home or proposed home, interviews the child, and interviews other witnesses. The GAL may also review relevant records, such as school, medical, or mental health records. The GAL may ask other experts, such as a social worker or a psychologist, to provide input and possible future testimony regarding the case. If there are problems with alcohol or drugs, the GAL may ask the judge to order a parent to have screening tests.
• Recommendations by the Guardian – The GAL may make recommendations to the court to help the child’s welfare and to protect the child from some of the conflicts that may arise between the parties such as between divorcing parents. The GAL also helps the child understand the court process and the role of every person in the courtroom such as the judge, the bailiffs, the court reporter, and the attorneys. In investigating and developing input for the court’s consideration, the GAL may consider the child’s wishes, the wishes of both parents, the child’s interaction and relationship with family members, the child’s adjustment to home, school, religion, and community, the child’s age and developmental and educational needs at various ages, the mental or physical health of a parent, the child, or other person living in the proposed custodial household, the cooperation and the communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other, a parent’s likelihood to interfere in the other parent’s continuing relationship with the child, any physical abuse or problems with alcohol or drugs, and other significant factors that would affect the child’s well-being.
• The Guardian’s Preliminary Report – After the investigation, the GAL will give the parents and their attorneys a preliminary summary report of what the GAL will present to the judge. Later, the report could change depending on additional evidence or facts that are uncovered. Afterward, if the parents cannot agree as to how to settle their dispute, the case is prepared for trial before the judge, who will make the final decision.
• The Guardian’s Fees – The judge decides who pays for the GAL’s services. Oftentimes, each parent is responsible for one-half of the GAL’s total costs, including the GAL’s time and investigation costs, such as tests and experts. The court also may require the parents to pay an initial deposit and periodic payments to the GAL during the case.

How Can I Get Custody of My Children in South Carolina?

If you are trying to get custody of your child in South Carolina, you should know that the family court’s decision rests on what is in the “best interest of the child.” In determining who should have custody or whether the parents should share joint custody, the family court carefully scrutinizes each parent’s behaviors both before and after separation. Essentially, if you are seeking custody in South Carolina of your child or children, you must convince the family court of your strengths as a parent and, in some cases, the other parent’s weaknesses.

Parenting Strengths – Here are some of the factors the family court considers to be strengths regarding your parenting abilities:

• Primary Caregiver – The family court will consider which parent has traditionally been the primary caregiver to the children.
• Good Parenting Skills – Good parenting skills include consistency and fairness in discipline, teaching independence, establishing family routines such as meals and study times, setting good examples, teaching respect for other adults and authority, stressing the importance of education, showing affection, being involved with school and extracurricular activities, planning good nutrition, reading together, providing regular medical and dental care, and other skills.
• Financial Resources – Greater financial ability to provide for the children can be a very important factor considered by the family court.
• Religious Training – The family court may consider which parent supports and fosters a religious upbringing for the children.
• Parents’ Time for the Children – The family court oftentimes considers which parent will have more time available to spend with the children.
• Stable Home Environment – The family court will consider which parent provides a more stable and consistent home environment.
• Extended Family – The family court may look with favor upon the availability of relatives to help care for the children unless it appears that the involvement of relatives is too much.

Parenting Weaknesses – Here are some of the factors the family court considers to be weaknesses regarding your parenting abilities:

• Parent’s Unfitness – Some of the specific things that tend to show unfitness are drug and alcohol abuse; emotional and mental instability; and immoral conduct such as exposing the children to an adulterous relationship.
• Parental Alienation – The family court will consider whether a parent is making attempts to damage the children’s relationships with the other parent. Such attempts typically include making negative comments to the children about the parent and interfering with the children’s ability to communicate with and to spend time with the other parent.
• Domestic Violence – Under the South Carolina law, a family court judge must consider evidence of domestic violence in deciding which parent should have custody.

How the Family Court Views Custody Battles in South Carolina

This excerpt is from a custody battle in which I was the guardian ad litem (GAL) for the children. In this case, the presiding Charleston family court judge eloquently expressed the court’s outlook as to why parents should do all that they can to resolve their issues before asking the court to decide their family’s future. I thank the Honorable Paul W. Garfinkel for his permission to reprint his words for the benefit of all parents, in South Carolina and elsewhere, who may be facing difficult choices as to what is best for their children:

I want to make a few comments to you about how important it is to your family to resolve this case. . . . I know that both of you sit here today each of you are convinced of the merit of your own case and the rightness of your own position. However, asking your attorney to convert your convictions and beliefs into evidence that will result in a verdict in your favor is asking for what I believe the most difficult task that a trial attorney can be required to do.

A custody case is much different from any accident case or a criminal trial. In those cases, an attorney is only asked to prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then I must decide which of you is the better parent. Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation,” and say that you had to prove this to someone who had never seen either painting and you weren’t allowed to show the paintings to them? I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about composition, color, depth, character, and proportion. Or I suppose you could bring in some ordinary people to say which one they think is better. Maybe you could take a poll. This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but they have no way of showing me exactly how you parent. They can’t take me to the study sessions so I can see you how a good tutor Dad is. They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom comforts the child who is awakened with a fever.

I want you and I want your attorneys to bring up those incidents which show you to be caring and loving parents, and I am sure they will try. However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts will work very well. In trying to prove the positives you will discover that with the passage of time, the inability of witnesses to describe the situation with the same force with which it occurred, just the difficulty of putting into words other people’s’ thoughts, feelings and actions, all of these combine to make grey what you felt was vivid or blunt . . . what you thought was poignant. On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of your children to school without their lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?” We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent.

At the end of the trial any goodwill each of you had for the other, if there is any, will have been totally destroyed. It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers . . . will be there for you for the remainder of this long journey. We could try to do our best to get you pointed in the right direction and maybe even help you along, but it is only in the first few steps. In the end it is both of you who must raise these children.

If your children could reach into their hearts and tell you exactly what they think and feel about what is going on here, if they could get beyond the hurt we know they must feel, we all know what they would say. First they would say, “I wish Mom and Dad were back together.” Knowing this will not happen, they would say, “I wish they would just stop fighting.” No doubt they love you so much they are probably blaming themselves for your original breakup. It is time you get past the anger and put aside the hurt. You may even have to forgive. The pain that has been caused here arises from the conflict between each of you and has nothing to do with the children.

Your children want this conflict to end. You have the chance to leave there today with an agreement that is in the best interest of your children. But it is an agreement that you must reach together. You must be willing to put aside your differences and be willing to accommodate each other’s needs. But most importantly you must be ready now to put the needs of your children first. I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has happened in the past. This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to cause to these children. I can tell you right now it has happened and it happens every time. Put aside your own egos and swallow them. Leave it is in this courtroom . . . we’ve had a lot of egos left in this courtroom. You don’t see them but I do because I see parents who are willing to put their children’s welfare above their own ego. And they leave it right here and they know and understand what is really best for the children.