Child Custodial Rights in South Carolina

By Bernadette A. Safrath
A court will always choose a custodial parent based on the children's best interests.

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Parents can enter a written custody agreement when they separate or divorce. If they cannot agree, a court will decide custody. In South Carolina, a court can choose from several different types of custody arrangements. The court will make a decision based on the "best interests of the child" standard.

Legal vs. Physical Custody

A South Carolina court must decide two aspects of custody. Physical custody is the right to actually have possession of the child. One parent may be classified as the primary physical custodian so the child has a main address for mail and educational purposes, especially for selecting a school district. The parent who has custody for the majority of the year will be named the primary custodian. Legal custody refers to each parent's authority to make decisions regarding the child's upbringing. Parents with legal custody can make decisions about education, extracurricular activities, child care, religion, health care and discipline.

Types of Custody

Either parent can be awarded physical and/or legal custody. In South Carolina, courts prefer to award joint or shared custody to both parents. To maintain stability, the child will reside primarily with one parent, but spend weekends, some holidays and at least half of the summer with the other parent. A parent may be awarded sole legal custody if the other parent is declared unfit. The parent will still share physical custody because an unfit parent may still be awarded visitation, even if it must be supervised. Last, if there is more than one child, each parent may be awarded custody of one child. This is uncommon because courts do not typically like to separate the siblings. If the court believes that split custody is in the best interests of the children, the parent must also agree to the arrangement before it can be ordered.

Best Interest Factors

Both parents have an equal right to custody in South Carolina. A court cannot give preference based on gender. The factors considered are called the "best interests of the child" standard. When determining custody, a South Carolina court will examine each parent's circumstances, including income, home environment and availability for the child, the religion practiced by the parents and the child, the child's welfare, the child's preference, if the court believes the child is mature enough to decide, any history of drug or alcohol abuse by either parent and any history of domestic violence or child abuse.

Modification

A court may modify a custody order in the future if circumstances have changed causing modification to be in the child's best interests. For example, if the child expresses a preference to live with the other parent, the court may modify custody. The requesting parent must establish that the child's preference has changed, that he is a suitable custodian and that the child will still maintain a relationship with the other parent. Another reason for modification is when the custodial parent becomes unfit. If the requesting parent can establish that the custodial parent has a substance abuse problem or is guilty of neglect and abuse, the court will change custody.

About the Author

Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.