When can a non-parent take custody of a child from a parent? When can a non-parent keep custody of a child over the objections of a parent?
Although there is a presumption that placement of a child with their biological parent is in the child’s best interests, there are times when it is in a child’s best interests to live with someone other than a parent. Below, we will discuss these situations, including:
- What a de-facto custodian is,
- When a non-parent can take custody from a parent,
- When a non-parent can keep custody over a parent’s objections, and
- Who can take custody when a child has been abused.
Non-Parents can Take Custody if the Parent is Unfit
Although there are SC cases that address the question of when a non-parent can take or retain custody of a child when the parent is unfit, SC also enacted a “de-facto custodian” statute in 2008 which provides guidance for how to determine when a non-parent de-facto custodian can keep custody of a child.
What is a De-Facto Custodian?
SC Code Section 63-15-60 says that a “de-facto custodian” is a primary caregiver and financial supporter of a child who also has:
- Lived with the child for six months or longer if the child is younger than three, or
- Lived with the child for one year or more if the child is three years old or older.
If a person proves by clear and convincing evidence that they are a de-facto custodian of a child, they can seek custody of the child. The Court can then order either custody or visitation with the child if the de-facto custodian proves by clear and convincing evidence 1) that the parent is unfit or 2) that there are other compelling circumstances.
When the Parent has Custody of the Child
The SC Supreme Court has also held that, when a non-parent seeks to take custody from a parent, the natural parent wins unless they are proven to be unfit.
For example, in Kay v. Rowland, the SC Supreme Court affirmed the placement of a child with the child’s natural father and the denial of custody to the grandmother where the family court found the father fit, stating:
Once the natural parent is deemed fit, the issue of custody is decided.
In another case, McDowell v. Richardson, the SC Supreme Court reversed the family court’s grant of custody to a grandmother when the lower court made no finding as to whether the father was a fit parent.
The Court held that the lower court must first make a finding as to the father’s fitness as a parent before awarding custody to the grandparent and remanded the case for further findings.
When the Non-Parent has Custody of the Child
When a non-parent has custody and a biological parent seeks to have the child returned to their custody, the SC Supreme Court has held, in Moore v. Moore, that there are four factors the Court must consider, including:
- The parent’s fitness, ability to care for the child, and ability to provide a good home,
- The amount of financial support and visits that the parent has had with the child while the child was in the care of the non-parent,
- The circumstances of the parent’s temporary relinquishment of the child, and
- The degree of attachment between the child and the temporary custodian.
When a non-parent has custody of the child, they are likely to also qualify as a de-facto custodian, and, under both SC Code Section 63-15-60 and Moore v. Moore, they are likely to be granted continued custody if the biological parent is found to be unfit.
But how does the de-facto custody statute affect the analysis when the parent has custody, and a non-parent seeks to take custody from them?
The Family Court has Authority to Give Custody to a Non-Parent
When a parent has custody of a child, and a grandparent or other non-parent seeks to take custody away from the parent, it is more difficult because the presumption is that a child should be placed with their natural parent whenever possible.
Despite this, the family court has the authority to give custody to a non-parent when it is in the child’s best interests, including, under SC Code Section 63-3-530, to grant custody to a de-facto custodian (see above also) or to “any other proper person or institution:”
(A) The family court has exclusive jurisdiction:
…(46) to order custody of a minor child to the de facto custodian under the circumstances specified in Section 63-15-60…
(20) to award the custody of the children, during the term of any order of protection, to either spouse, or to any other proper person or institution.
Another circumstance when the family court may allow a non-parent to take custody of a child is when the child is being abused or neglected.
Who can Take Custody When Child Abuse is Suspected?
SC Code Section 63-3-550 states that any person who has “knowledge or information of a nature which convinces such person that a child is neglected or delinquent” may bring an action in the family court regarding the child.
For example, in Jobst v. Martin, decided in 2018 (after the de-facto custodian statute was passed), the family court gave custody of a child to the grandparents when the father, who had custody at the time, worked and went to school full time, and the mother had substance abuse issues and had not been paying child support.
This is in line with the factors announced in Moore v. Moore (above) and shows that the court will grant custody to parties who are not de-facto custodians when the Moore factors are in favor of a non-parent taking custody.
If you are a non-parent or grandparent seeking custody of a child or seeking to keep custody of a child that has been in your care, or a parent seeking to keep or to regain custody of your child, your Myrtle Beach child custody lawyer on the Axelrod team may be able to help.