WHO GETS THE KIDS? THE SOUTH CAROLINA GUIDE TO CUSTODY
Very often one of the first question asked in a divorce is “Who gets the kids?” This can be a flashpoint during divorce proceedings.
Abolishment of the “Tender Years Doctrine”
In South Carolina, there is no legal preference for awarding a mother custody of a child of tender years. See S.C. Code Ann. §63-15-10.
In South Carolina, there is either joint custody or sole custody. According to S.C. Code Ann. §63-15-210,
(1) “Joint custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.
(2) “Sole custody” means a person, including, but not limited to, a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.
Parenting plans must include at minimum “the allocation of parenting time to be spent with each parent, and major decisions, including, but not limited to, the child’s education, medical and dental care, extracurricular activities and religious training.” See S.C. Code Ann. §63-15-220.
Equal Access to Children’s Education and Medical Records
Under South Carolina, regardless of the custody arrangement, “…each parent has equal access and the same right to obtain all educational records and medical records of his or her minor children and the right to participate in the children’s school activities and extracurricular activities that are held in public locations unless prohibited…” by court order. See S.C. Code Ann. §63-15-260.
What is “the best interest of the child?”
When South Carolina family courts issue or modify a custody order, the family court must consider the best interest of the child. This may include, but is not limited, to the following factors:
(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.
See S.C. Code Ann. §63-15-240(B).
In order for South Carolina to issue any orders affecting children, South Carolina must have jurisdiction. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a law that insures only one state has jurisdiction over minor children at any given time. A child’s home state is defined as
(7) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
See S.C. Code Ann. §63-15-302(7).
Generally, South Carolina has jurisdiction to make an initial child custody determination if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State, but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under item (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 63-15-342 or 63-15-344, and:
(a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
(b) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;
(3) all courts, having jurisdiction under item (1) or (2), have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 63-15-342 or 63-15-344; or
(4) no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3).
See S.C. Code Ann. §63-15-330(A). It is important to note that the “[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.”
See S.C. Code Ann. §63-15-330(C).