An Overview of SC Custody Laws
Unwed parents, who have children out of wedlock, have custody rights and responsibilities in South Carolina similar to married parents. While they will not be designated by law as husband or wife, the courts will generally apply the same set of rules and factors to determine how to deal with the children they have together.
S.C. Code Ann. Section 63-3-530(A)(1) provides in part:
… a parent not granted [legal] custody of a child has the right and obligation to visit with the child and have the opportunity to communicate with the child as provided for by law.
South Carolina law attempts to define a parent who has a right of legal custody to visitation with a child by requiring that the parent take responsibility over the child. To establish parental rights and responsibilities over a child, the parents must be legally married or born in wedlock. The latter would be established if a child is born within the marriage of the parents or after the marriage is established. If the parents are not married , the law presumes that the male is not the father of the children. In this case, he cannot be determined to be a de facto parent, and he cannot obtain visitation or custody unless paternity is established.
For a father to obtain visitation or custody of the child, he must establish paternity in court. S.C. Code Ann. Section 20-7-1730 explains the procedures to establish paternity under South Carolina Law.
The laws governing child custody and divorce affect both married and unmarried parents. If the couple is unmarried when the child is born, the validity of the marriage is irrelevant to the situation and will not factor into the legal process of establishing visitation or custody rights. An unwed mother does not automatically have sole custody of the child. She cannot move with the child without the other parent’s consent whether there is a legal marriage or not.
Different Types of Custody in SC
The two types of custody recognized by South Carolina are Legal Custody and Physical Custody. These types of custody are often awarded in combination, but they are very different.
Legal custody gives a parent the legal right to make important decisions for a child. That can include everything from day-to-day decisions to major life decisions, such as education and health care. Most fundamentally, it is the right to make decisions on behalf of a child, and to have a say in those decisions.
With physical custody, one parent or the other has the right to make decisions about the child’s physical location. The majority of time that means the child lives mostly with that parent. But physical custody can also mean that one parent only has visitation with the child. It is not unusual for parents to have equal physical time with their children, or joint physical custody.
The most typical arrangements in South Carolina are joint legal custody to both parents with primary physical custody with one parent. Even in those situations, the non-custodial parent typically has significant parenting time as well. This is particularly true after divorce, but even when unmarried parents separate there are often joint legal and physical custody arrangements.
The differences in physical custody arrangements among unmarried parents have to do with the day-to-day circumstances. In some cases, parents share equally in time and custody. In other cases, one parent might have the benefit of 75% parenting time, and the other 25%. Those arrangements are much like divorce, where physical custody may be somewhat skewed toward one parent or the other, or at least more time with parents will be allocated to one parent.
Joint legal custody is fairly straightforward – even when there are unmarried parents, they will typically have joint legal custody. Joint Physical Custody arrangements are more varied, and will depend in great part on the circumstances. It is possible that one parent has sole legal custody of the children, and the other parent has visitation rights.
Establishing Paternity: What Fathers Need to Know
For unmarried fathers in South Carolina, establishing paternity is a crucial step in securing their legal rights to both their child and the possibility of obtaining custody and/or visitation. The concept of legitimation, which is a process that grants legal rights to parents who are not married at the time of their child’s birth, plays a key role in this situation. However, in South Carolina, the terminology is a bit different, and the law does not refer to children born out of wedlock as illegitimate children.
In order to initiate the process of establishing paternity, an unmarried father can do so by filing a lawsuit at any time prior to the child’s majority. Although this may require the direction of an experienced family law attorney, once the lawsuit is filed and served on the opposing party, the court will have jurisdiction over the case and a DNA test can be obtained to determine the actual father of the child. Once the blood test is taken, the court will then enter a "Final Judgment of Paternity" if the father is found to be the biological parent. This order will assign parental responsibility for the child, grant child support, facilitate visitation rights, and determine other financial responsibilities.
It is important to keep in mind that an adjudication of paternity will not necessarily provide custody rights to the father. The father would have to file a separate lawsuit and prove to the court that he would be better suited than the mother to be the primary custodial parent of the child. If the child is still under the age of 18, the unmarried father’s rights remain in doubt unless he takes the necessary steps to prove himself to the court.
The laws in South Carolina regarding children born out of wedlock changed nearly 40 years ago, when the South Carolina Supreme Court ruled in the landmark case of Gienna v. McCauley, that unmarried fathers and their children must reap the same benefits and can no longer be treated differently from married couples. This ruling has dramatically affected the legal status of children born in English-speaking countries without having to undergo the process of legitimization or gaining citizenship.
Today, South Carolina law must provide the same rights to all children, whether married or unmarried. This means that children born out of wedlock will be treated the same as those born to married parents, so long as the father takes the necessary steps to establish paternity in the eyes of the court.
Legal Issues in a Child Custody Case
For unmarried parents going through a custody dispute, there are legal considerations that must be addressed. Mediation is typically the first step in the process. The second step can be court filings and hearings. Often times the child is also interviewed by the judge, law guardian or some other intermediary. Generally speaking, it is best that parents work out their issues amicably and avoid court or litigation. While South Carolina refers to the word "custody" in a "legal" sense, the "best interest of the child" is the underlying philosophy that should govern child-related issues.
How to File for Custody
Filing for custody in South Carolina as an unmarried parent involves completing several steps, which should be performed in the following order:
Step 1: Provide Notices of Family Court.
First, you are required to provide certain notices to family court before commencing an action under the South Carolina Uniform Interstate Family Support Act, the Hague Convention on the Civil Aspects of International Child Abduction, the Uniform Child Custody Jurisdiction and Enforcement Act or the International Child Abduction Remedies Act. You cannot receive a scheduling order if you have failed to provide the required notice.
Step 2: Prepare a Rule to Show Cause and Notice and File with Court.
Second, you need to prepare a rule to show cause and notice on the case action summary sheet, and file all with the court . You can use Form SCCA 490 to prepare the rule to show cause and notice on the case action summary sheet for the family court. You will also be required to file a motion along with the rule to show cause and notice.
Step 3: Submit to an ALJD Hearing.
Lastly, the rule will give the Date and Time for you to appear before a Family Court judge (or appointed lawyer and family court judge-system). Be prepared to justify the action. If the filing is granted, the schedule for future appearances will be provided at that time.
Court filing fees vary by county and are typically between $100-$200. In some South Carolina counties like Union County, Tyler County, Oconee County, Kershaw County, Anderson County, Chester County, Beaufort County, Barnwell County, and Pickens County, it is approximately $150.
Rights and Responsibilities for Unmarried Parents
It is increasingly common for parents to have children outside of the context of marriage. Parents of children born out of wedlock have specific rights and responsibilities regarding custody in the event of a separation or divorce, to be determined by the best interests of the child.
In South Carolina, unmarried parents are presumed to have joint custody of their child until legal action is taken. Parents have equal rights and responsibilities for the care of the child, including but not limited to division of parental duties with family and friends, and financial contributions.
Similar to divorce proceedings, legal custody, physical custody, and visitation are all terms that come into play for unmarried parents who have been separated or who need to establish custody for the first time. Legal custody refers to the decision-making authority for raising the child. Physical custody refers to where the child will physically reside. Visitation is designed to ensure that the non-custodial parent has regular and consistent time with the child in order to facilitate the parent/child bond.
Parents filing for custody of minor children of unmarried parents are typically awarded joint custody. Thus, they both share in the decision-making authority pertaining to the child. A family court will define the roles of parents when it comes to day-to-day decisions and major decisions. Scheduled visitation is also typically assigned to the non-custodial parent unless it would not be in the best interests of the child to do so. However, certain factors are considered when determining custody and visitation, including:
While this list does not contain the only factors that may be considered when determining custody or visitation of minor children, it does encompass all the elements of a traditional custodial plan. This is why an initial custody evaluation is necessary to determine the extent to which each of these factors apply in your case.
In South Carolina, furthermore, courts are mandated to refer parents to family court mediation before litigation is undertaken regarding custody and visitation problems. If parents do not settle, a court may determine custody and/or visitation for minor children.
Changing a Custody Arrangement
Modification of custody arrangements is possible if there is "material" or "substantial" change in circumstances that occurred after the entry of the previous order. A material change may include a move of one parent out of the area or a significant change in either parent’s income and/or employment. A substantial change in circumstances can be something like a parent’s remarriage.
A change of custody will only be granted in the best interest of the child. While an assessment of the qualifying "material or substantial change" does not have to be made in assessing the modification request, it is indeed part of the overall evaluation of the best interest of the child.
It is important to note that there is a strong presumption in law against changing custody. The presumption can be overcome by showing a material change in circumstances. When considering a request for a change of custody, a judge will evaluate everything in the best interest of the child and balance that with the law that focused on maintaining stability in the life of the child. The burden is the burden of preponderance of the evidence on the party seeking the modification. The judge ultimately has broad discretion in determining what is the best interest of the child.
It is critical when seeking to modify a previous Order for custody to have a quality lawyer. These types of motions can be very problematic if not well thought out and carefully planned.
SC Resources for Unmarried Parents
For additional information in SC, unmarried parents can contact the SC Department of Social Services (DSS). They have county offices throughout South Carolina and offer low cost legal assistance to custodial parents attempting to receive child support. Additionally, individuals who have DSS opened cases in SC may qualify on a sliding scale for attorneys at no cost. The SC Court System also has a great family court self help page for self represented litigants. Finally , there are many great places online to get more information about custody laws in any state. Specifically for SC, the SC Bar website has a fairly comprehensive set of resources for those representing themselves in family court. Also, the Collaborative Family Lawyers of SC have a ton of great information about divorce and custody resources in SC.