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How does a court determine the best interest of a child?

How does a court determine the best interest of a child?
Axelrod & Associates, P.A.

When the family court is asked to decide a child custody dispute, there is really only one standard that the court must follow: What is in the best interest of the child?

But how does the court determine the best interest of a child?

There are guidelines in SC law that the court must follow when deciding child custody, including:

  • Statutory factors the court must consider,
  • The child’s religion,
  • The child’s preference, and
  • Whether there is evidence of domestic violence in the home.


In many cases, divorcing parents will settle their issues before they get to court – including issues involving the children like custody and a visitation schedule. When the parents have not reached an agreement, however, they must present evidence to the court to prove that it is in the child’s best interest to remain with the parent.

When the parents do agree before their final hearing, the family court will still review the parents’ agreement to determine whether it is in the best interest of the child, and the court will make changes when necessary.

What are the Family Court’s Options for Child Custody?

When the family court issues an order for child custody, or when the court is asked to modify an existing child custody order, SC Code Section 63-15-240(A) says that the court’s order may include, but is not limited to:

  • Approval of the parent’s parenting plan (including the parent’s settlement agreement which contains provisions for child custody and visitation),
  • Sole custody to one parent with appropriate visitation for the other parent,
  • Joint custody – in which case the order must include in the order the living arrangements for each child and how the parents will communicate about major decisions like “the child’s health, medical and dental care, education, extracurricular activities, and religious training,” or
  • Other custody arrangements based on the court’s determination of what is in the child’s best interest.

The last sentence above leaves the court’s options wide open – although the most common form of child custody is sole custody with visitation, the court has the authority to create or approve a more creative solution based on the child’s best interest.

Statutory Factors to Determine the Child’s Best Interest

There is also a list of factors that the court must consider when determining the best interest of a child in a custody dispute. SC Code Section 63-15-240(B) says that the court must consider:

  • The child’s temperament and developmental needs,
  • Each parent’s ability to meet the child’s needs,
  • The child’s preference,
  • The parents’ preference,
  • The child’s relationship with each parent, siblings, grandparents, or others who will affect the best interest of the child,
  • Each parent’s actions to encourage the child’s relationship with the other child,
  • Each parent’s compliance with court orders,
  • Manipulative or coercive behavior by either parent to involve the child in the parent’s dispute,
  • Whether a parent disparages the other parent in front of the child,
  • Each parent’s ability to be actively involved with the child,
  • The child’s adjustment to home, school, and community environments,
  • The stability of the current and proposed residence for the child,
  • The mental and physical health of everyone involved, although a parent’s disability alone is not determinative of custody,
  • The child’s cultural and spiritual background,
  • Any history of child abuse or neglect,
  • Whether there is domestic abuse between the parents, a parent and someone else, or a parent and the child,
  • Whether one parent has relocated more than 100 miles from the child’s residence in the past year (unless it was for safety reasons), and
  • Any other factors the court finds are necessary to consider.


There are other statutes that the court must consider when deciding child custody, some of which are also included in the statutory factors listed above. These include the abolition of the Tender Years Doctrine, the child’s religion, the child’s preference, and any evidence of domestic violence.

Tender Years Doctrine

In SC Code Section 63-15-10, SC abolished the Tender Years Doctrine, which presumed that a child younger than four should automatically be placed with the mother – each parent’s ability to care for the child is more important than the child’s age, and the court must make a custody determination based on the child’s best interest.

The Child’s Religion

If a child is being placed with someone other than a parent, including an individual, agency, or institution, SC Code Section 63-15-20 requires the court to consider the child’s religious faith and place the child with the individual, agency, or institution that is governed by:

  1. The same religious faith as the child’s parents,
  2. If the parents’ religious faiths are different, then the child’s religious faith, or
  3. If the child’s religious faith is not known and the parents’ religious faiths are different, then the faith of either parent.

The Child’s Preference

The child’s preference matters and Code Section 63-15-30 says that the court must consider the child’s preference while also considering the child’s ability to express their preference based on their age, experience, maturity, and judgment.

Evidence of Domestic Violence

Allegations of domestic violence are not enough to deny custody to a parent, but the court must consider any evidence of domestic violence, whether or not it resulted in a criminal conviction.

Code Section 63-15-40 requires the court to consider evidence of physical or sexual abuse, including which party was the primary aggressor in any domestic violence incidents.


If you are considering separation or divorce and there are children involved, your Myrtle Beach child custody lawyer on the Axelrod team may be able to help.

Call now at 843-916-9300 or fill out our contact form to set up an initial consultation with an experienced SC child custody and visitation attorney on the Axelrod team.

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