Child Custody

Parents can address the issues of child custody and visitation of their minor child/children by filing an action in the South Carolina Family Court. Child custody cases can be a part of a larger action of divorce or separation, or they can be the sole issue raised by either parent.

One of the first questions that we ask a potential client is: Was the child born during marriage or was the child born out of wedlock?

When a child is born out of wedlock, S.C. Code § 63-17-20(B) applies:

When a child is born of a marriage, both parents have full custody rights to the child until the family court issues an order setting custody. When a child is born out of wedlock, the mother has custody until the family court issues an order determining who should have custody of the child.

Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child.  If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.

Essentially a Father must petition the Court to enforce his rights.

South Carolina law has no presumption favoring mothers over fathers or fathers over mothers in child custody cases.  As noted in S.C. Code § 63-5-30:

In years past, the court used to say that the court would leave a minor child of “tender years” with the mother. The only way for the father to obtain such custody was by proof of the mother’s severe neglect or unfitness (on the basis of morals or health) to care for the child. That is no longer the case.

 South Carolina law requires the Family Court to determine the best interests of the child. The court considers a number of things in determining custody, including but not limited to:

  • needs of the child
  • ability of the parents to care for the child
  • preference of the child
  • traditional roles of the parents
  • actions of the parent to encourage the continuing parent child relationship between the child and the other parent
  • manipulation to involve the child in the parents’ dispute
  • and many more

Once the court has weighed all the relevant criteria the court will issue a final custody order.

Once the judge signs the final custody order and it is filed, the order is binding; however, if there is a substantial change in the circumstances a parent may seek modification.

It is essential that you hire an attorney that understands how to best present your case to the family court, thereby ensuring that you have the best possible outcome.

Josh and Linda have extensive experience and knowledge of their practice and the law. They help explain things along the way and are very encouraging through the entire process. Jared C.