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How is child custody determined in SC?
The short answer is that child custody is determined by the best interests of the child. But how does the family court decide what is in the best interests of a child?
Below, we will discuss the factors used by the family court to determine child custody in SC, including:
It is always better for parents to agree on important matters like child custody, child support, alimony, and division of property before reaching a final hearing in their divorce.
A negotiated separation agreement that includes custody and visitation can be adopted by the family court at a temporary hearing or at the final divorce hearing if the court finds that the terms are in the best interests of the child.
When the parties cannot agree, the issues may be resolved at mandatory mediation. When mediation fails, however, these issues must be decided at a trial, and the family court must determine what is in the best interests of the child before making a custody determination.
How does the court decide what is in the child’s best interests when making a custody determination?
SC Code Section 63-15-240(B) states that the family court “must consider” the best interests of the child whether the court is issuing a custody order for the first time or modifying a previously issued custody order.
The law contains a list of 16 factors (and one catch-all “anything else the court needs to consider” factor) that the family court should use to determine the best interests of the child:
In issuing or modifying a custody order, the court must consider the best interest of the child, which may include, but is not limited to:
(1) the temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) the preferences of each child;
(4) the wishes of the parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
(6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
(8) any effort by one parent to disparage the other parent in front of the child;
(9) the ability of each parent to be actively involved in the life of the child;
(10) the child’s adjustment to his or her home, school, and community environments;
(11) the stability of the child’s existing and proposed residences;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
(13) the child’s cultural and spiritual background;
(14) whether the child or a sibling of the child has been abused or neglected;
(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
(16) whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and
(17) other factors as the court considers necessary.
There are several additional SC laws and many SC appellate opinions that will guide the family court in determining the best interests of a child when determining child custody – we will go through some of these below.
The Child’s Preference: SC Code Section 63-15-30 states that “the court must consider the child’s reasonable preference for custody,” placing appropriate weight on the child’s preference “based upon the child’s age, experience, maturity, judgment, and ability to express a preference.”
In most cases, this means that the older and more mature the child, the more weight the child’s preference should be given when determining child custody.
Domestic Violence: SC Code Section 63-15-40 requires the family court to consider any evidence of domestic violence (whether or not there is a domestic violence conviction), including 1) physical or sexual abuse, and 2) who the primary aggressor was.
The Child’s Religion: when a child is being placed with an individual, agency, or institution, SC Code Section 63-15-20 requires the court to consider whether the individual, agency, or institution has the same faith as the child’s parents, the same faith as the child if the parents do not share the same faith, or the faith of either parent if the child’s faith cannot be determined.
The “Tender Years Doctrine:” There is no presumption in SC that a younger child should be placed with the mother. Recognizing that a father is just as capable of caring for a young child as a mother, the “Tender Years Doctrine” has been abolished in SC by SC Code Section 63-15-10.
There are scores of SC appellate opinions that interpret SC law regarding the placement of children and how the family court should determine the best interests of a child when determining child custody.
We won’t go through the appellate opinions here – most interpret or expand on the statutory factors listed above, and suffice it to say that, when a particular factor or factors may be at issue in a case, you must research, find, and read the relevant opinions from the SC Court of Appeals or SC Supreme Court to understand how to present the issue to the family court and to predict how the family court will rule on that issue.
Questions about how the family court determines child custody in SC?
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.
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