No one wants to be put in a position where they are wondering, “How does child custody work?”
Nevertheless, millions of people across the country find themselves in situations where their spouse has left them, they are contemplating leaving their spouse, or they need to make changes to a prior child custody arrangement.
If you are separating from your spouse and you have children, your first and most immediate concern is probably going to be, “Who takes the children?” For the health, safety, and well-being of your children, it is a question that demands an answer both for the immediate future and for the upcoming years until they turn 18.
So, how does child custody work in SC?
In this article you will learn:
- How SC family courts decide who takes custody of children;
- What the different types of child custody arrangements are; and
- Whether you can reach an agreement about child custody before the court decides for you.
How Child Custody Works in SC: The Basics
The overarching concern that drives every child custody determination in SC is “the best interest of the child.”
If you are involved in a child custody dispute in SC, you are going to hear “the best interest of the child” over and over again, because it is a legal phrase that is used to determine just about everything when it comes to children in the family courts.
So, what do they mean by the best interest of the child?
The Best Interest of the Child
What is “the best interest of the child?”
Generally, it means whatever is best in terms of the child’s happiness, safety, emotional development, and mental health.
Legally, there are a number of factors that SC law says the family court should consider when determining the best interest of the child in a custody dispute, including:
- The child’s developmental needs;
- Each parent’s ability to understand and address the child’s developmental needs;
- The parents’ wishes – for example, if both parents think mom should have sole custody, the court will give mom custody unless there are other considerations weighing against it;
- The child’s relationship with other members of each parent’s household;
- Whether each parent encourages the child’s relationship with the other parent, involves the child in the parents’ arguments, or puts the other parent down in front of the child;
- How involved each parent is in the child’s life;
- How well-adjusted the child is in their current home and school;
- The mental and physical health of each parent, although disabilities cannot be considered unless they present a danger to the child;
- The child and the parents’ religion;
- Any abuse, neglect, or domestic violence;
- Whether one of the parents has relocated more than 100 miles away in the past year;
- The child’s preference for where they will live; and
- Any other factor that the Court thinks is relevant given the facts of a particular case.
If the Court thinks that it is in the best interest of the child to live with dad full-time, dad will get sole physical custody. If the Court thinks that it is in the best interest of the child for mom to make all decisions about the child’s health or education, then mom will get sole legal custody.
Wait, physical custody? Legal custody? Aren’t they the same thing?
They are not – what do the terms “physical custody” and “legal custody” mean?
How Does Child Custody Work? Physical Custody vs. Legal Custody
First, we must understand a few more legal terms that get thrown around a lot in the family court – physical custody, legal custody, sole custody, and joint custody. What do they mean?
Physical Custody
Physical custody means who the child lives with.
The parent who has physical custody is called the “custodial parent,” while the parent who does not have physical custody is called the “non-custodial parent.”
In most cases, if one parent has physical custody, then the other parent will have regular visitation rights. Depending on the circumstances and, again, the best interest of the child, visitation could be unsupervised overnight visits at the non-custodial parent’s home, it could mean supervised visits at the custodial parent’s home or another family member’s house, or, if the child is in danger, visitation could be denied.
Legal Custody
Legal custody means the right to make decisions about your child’s life, whether that is educational, religious or spiritual, or medical.
Like physical custody, legal custody may be given to either parent, or it may be shared between both parents – which brings us to some more legal terminology. What do sole custody and joint custody mean?
Sole or Joint Custody
Sole physical custody is when the child lives with one parent full-time, although the other parent will most likely have regular visitation with the child.
Sole legal custody is when only one parent has the authority to make important decisions regarding the child.
When parents have joint physical custody, this means that the children split their time between the two parents’ homes. When parents have joint legal custody, it means that both parents have the right to make important decisions regarding the child.
The most common arrangement involves one parent taking sole physical custody while the other parent has regular visitation – this may be encouraged because it provides some stability for the child, rather than shuttling the child back and forth between two homes every other week or month.
On the other hand, joint legal custody is encouraged and usually ordered by the court – whenever possible, both parents should have a say in important decisions regarding their children. Unless there is some reason it would be harmful to the child, both parents have a right to be involved in their child’s life and to influence their child’s upbringing.
One parent could have sole physical custody and sole legal custody, both parents could have joint physical and legal custody, or the court could order any combination that is in the best interest of the child.
Child Custody Agreements
Can’t you just negotiate a child custody arrangement with your former spouse before you get to court?
You can, you should, and the court will do everything possible to encourage you to reach a child custody agreement before a final trial date is set for your divorce or child custody dispute. If you are unable to reach an agreement on child custody, you may be forced to attend (and pay for) mediation before your trial date.
It is normal to negotiate a reasonable child custody and visitation arrangement as part of your settlement agreement, and it can be incorporated into a temporary order by the court when appropriate.
If the court agrees that your arrangement is in the best interest of the child, the court will most likely approve your child custody agreement and incorporate it into the final divorce decree in a divorce case or the court’s final order in a child custody dispute.
Questions About Child Custody in SC?
The child custody attorneys at Templeton Mims & Ward can help you to navigate a difficult divorce while protecting your children, file to modify a pre-existing child custody order, or file an action to get custody of your children.
If you need help with child custody in SC, contact us at (843) 891-6100 or by sending us an email through our website to set up a consultation and find out how we can help.