How do you file for custody of a child in SC?
The procedure for filing for custody in SC depends on the circumstances – in this article, we will look at the different ways that you can file for custody in SC, including:
- When the parents are married,
- When the parents are not married, and
- When the person seeking custody is not a parent.
Filing for Custody when the Parents are Married
When the parents are married, one or both parents will ask the court for custody as part of their divorce proceedings. If you are seeking child custody, the divorce complaint should ask the court to award custody of the child to you and ask for reasonable child support payments from the noncustodial spouse.
Once the divorce action has been filed and served on the other parent, your attorney may schedule a temporary hearing where you can ask the court to resolve any pressing issues – including child custody, visitation, and child support.
Although this is not a final decision, you are more likely to be awarded custody in the final divorce decree if the child has been living with you as the divorce action was pending. If custody is not resolved, you will be required to participate in mediation where a mediator will attempt to help you and your former spouse reach an agreement.
Filing for Custody when You are not Asking for a Divorce
If you are separating from your spouse but not asking for a divorce at this time, you can file for custody of your children as part of an action for separate support and maintenance.
Even if you are not seeking a divorce, the family court has the authority to issue an order of separate support and maintenance that decides issues like:
- Child custody, support, and visitation,
- Who remains in the marital home,
- Who pays the mortgage and other previously shared bills,
- Closing joint accounts,
- Transferring titles to personal property into the name of one spouse or the other,
- Divvying up assets as well as debt, and
- Spousal support.
Filing for Custody when the Parents are not Married
When the parents are unmarried, the child is automatically placed with the mother unless the father establishes paternity through a Voluntary Paternity Acknowledgement or a court order.
Depending on the circumstances, a father seeking custody of their child who was born out of wedlock may need to file a paternity petition in the family court and serve the child’s mother with the petition.
If the mother responds and acknowledges paternity, the father can then file for custody of the child. If the mother responds and denies paternity, the father can then get a DNA test to prove his claim.
The court will then decide the issues of paternity at a hearing – once paternity has been established, the father can then file a petition for custody, and the court will decide the custody issue based on the best interests of the child.
Filing for Custody of a Child by a Non-Parent
It is more difficult for a non-parent to file for custody of a child in SC. The court’s decision as to child custody is governed by the court’s determination of what is in the child’s best interest, and there is a rebuttable presumption in SC that custody with the natural parents is in the child’s best interest…
Nevertheless, there are two ways for a non-parent to file for custody in SC – when the nonparent is a “de facto custodian” and when the nonparent is considered a “psychological parent.”
De Facto Custodian
SC Code § 63-15-60 says that, if the court determines – by clear and convincing evidence – that a person is a de facto custodian of the child, then that person has standing to seek custody or visitation with the child if the court also finds by clear and convincing evidence that the child’s natural parents are unfit or that other compelling circumstances exist.
A de facto custodian is a person who has been the primary caregiver and financial supporter of a child for at least six months if the child is under three years old or for at least one year if the child is three years old or older.
The second method by which a nonparent can file for custody is when the petitioner establishes that there is a “psychological parent” relationship with the child as outlined by the SC Court of Appeals in Middleton v. Johnson.
In Middleton, the Court of Appeals held that the petitioner was entitled to visitation with a minor child where he had served as the child’s psychological parent for ten years and it was in the child’s best interest to allow visitation.
To prove that a petitioner is a psychological parent, the petitioner must show that:
- The natural parent consented to and fostered the petitioner’s parent-like relationship with the child,
- The petitioner and child lived together in the same home,
- The petitioner assumed the obligations of parenthood including responsibility for the child’s care, education, development, and financial support, and
- The petitioner was in a parental role long enough to establish a parent-like relationship with the child.
Your Myrtle Beach divorce lawyer at Axelrod and Associates will help you to determine the best way to file for custody in your circumstances, whether you are seeking a divorce, child custody during a separation, or custody of a child when you are not the natural parent.