"Who decides who gets the kids?"
The Judge, that's who! The English Court system was 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. The Family Court Judge, after weighing all the evidence, ultimately decides who gets the children.
"Why does the Family Court decide?"
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." 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 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.
"Can't we work it out on our own?"
Yes. 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. If either of the parents want a custody agreement to be enforceable, however, 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 it is not in the best interests of the children.
"What is child snatching?"
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 physical or legal 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. (Even an experienced Family Law Lawyer can have a difficult time deciding which is which.) However, just because child snatching may technically be legal (under some circumstances), does not mean that it is the right thing to do. There are great risks in moving a child from his or her 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. It is also a federal crime to move a child over state lines when a valid family court order exists.
"What types of custody are there?"
There are two basic types of custody: sole custody and joint custody.
1. "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.
2. "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.
"How does the Judge decide custody?"
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.
The law states that determining what is best for the child involves a consideration of all of the circumstances of the particular case and, usually, many factors. A Judge will consider anything that might relate to the fitness of a parent or the best interests of a child. Seldom is any one factor determinative of the outcome. 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 are 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 quite reasonably decide that the best interests of their children is served by awarding custody to the parent who is the most fit to raise them. 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.
Immoral Conduct. 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.
Domestic Violence. By law, the Family Court is specifically directed to consider evidence of domestic violence in making child custody decisions.
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.
Not Providing a Good Home. A lifestyle demonstrating an inadequate commitment to "settling down" can serve as a basis for denying custody.
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 an actual South Carolina custody 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. 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 with the child.
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 Judge in Family Court is entitled to hear the opinions of anyone who has something relevant to say about the welfare of children whose custody is in dispute. 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 influences 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 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.
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.
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.
"Who else can ask for custody?"
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.
"Can I regain custody later if I lose it now?"
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.
"Warning!"
This Webpage is only a brief overview of custody. Only a licensed, qualified attorney who practices in the Family Court can adequately address your individual needs and questions.
