There are many complicated and difficult aspects to divorce. For parents, the most complicated and difficult part may be the knowledge that your children may no longer be under your care every day. Instead, you may have to share time and decisions with your former spouse, a task that is much more difficult after divorce than while you are married to each other. Even worse, your former spouse may fight you for custody or may not be fit to have custody and you will have to prove why you should have custody. From understanding your child custody options to the factors considered when deciding custody and tips on what not to do if you want to secure custody in divorce proceedings, King Law Offices understands the ins and outs of South Carolina divorce and custody. Call us at (888) 748-KING to schedule a consultation and learn more about how one of our attorneys may be able to offer assistance in your case.
What Are South Carolina Custody Options?
In South Carolina, parents are encouraged to work out child custody between themselves in mediation before allowing the court to make the decision for them. This allows parents to create whatever custody arrangement works best for their family, in theory. The court will review any parenting plan that the parents agree to, and if it is extremely unfair to one parent or detrimental to the child, the court may not allow it. In the event that the parents cannot come to an agreement, or the agreement is rejected by the court, the court then decides custody as part of the divorce proceedings.
Like most states, South Carolina offers two kinds of custody: legal and physical. Physical custody indicates where the child primarily lives, while legal custody involves the right and responsibility to make important decisions regarding the child, such as education, religion, and healthcare. Within those two custody types, S.C. Code § 63-15-210 defines two options, sole and joint. There is a third option that is not often ordered, which is divided physical custody.
Sole Custody
Sole custody is when one parent is given custody. This can apply to legal, physical, or both types of custody. Sole physical custody means the child primarily resides with one parent and the other parent has visitation. Sole legal custody means one parent is given the right and responsibility to make important decisions for the child. If a parent is granted sole legal custody, they have the discretion to decide whether to consider their former spouse’s opinions and feelings. A parent can have sole custody physically but not legally, legally but not physically, or both physically and legally.
Joint Custody
Joint custody is when both parents split custody. Like sole custody, joint custody can be physical, legal, or both. Joint physical custody may mean the child spends approximately equal amounts of time at each parent’s home, or it may mean the child spends more time at one parent’s home than the other’s. Joint legal custody means that both parents share decision-making authority over the important decisions. Because parents are not always able to agree, there may be a clause in the custody agreement that gives one parent the authority to make a final decision if they disagree or names a third party who breaks the tie. Like sole custody, parents can have joint physical custody while one parent has sole legal custody, one parent can have sole physical custody while the parents share legal custody, or the parents can share joint legal and physical custody.
Divided Custody
Divided custody is rare and the courts prefer not to order it except when absolutely necessary. Divided custody is when parents have two or more children, and each parent has physical custody of one or more of those children. This type of custody tends to be ordered in cases where there is extreme hostility between two siblings or between one parent and a child. In some cases, it may be ordered when one child has special needs and one parent is uniquely qualified to care for that child and caring for that child takes up the majority of the parent’s time. The court prefers not to order divided custody as it can weaken the relationships between siblings and between children and their parents. Because this custody is so rarely ordered, it is strongly recommended that a parent have plenty of evidence to back up their request if they hope to get divided custody in divorce proceedings.
Factors Considered in Custody Decisions
When deciding child custody in divorce proceedings, the goal of South Carolina family courts is to do what is in the best interests of the child. This means that there are many factors the courts must consider. These factors include:
- Child’s best interests and well-being
- Child’s bond and relationship with each parent
- Each parent’s ability to provide a nurturing, stable environment
- S.C. Code §63-15-30 requires the courts to consider the child’s preferences based on the age, maturity, experience, judgment and ability to express their preference
- Any history of abuse, neglect, or other concerning behaviors by either parent
- Parental behavior and conduct during the divorce proceedings
- Allegations of parental alienation
- Any co-parenting agreements and the parents’ ability to cooperate
- Relocation of one or both parents
What To Do During Divorce Proceedings To Secure Child Custody
Parents are given rights to their children upon the births or adoptions of those children. While parents are married, exercising these rights is simple as couples discuss and make decisions together regarding their children. When they disagree, they work together to find a compromise. After divorce proceedings begin, this cooperation often becomes much more difficult, and those rights become limited based on the family court’s decision. In order to attempt to secure child custody, parents must follow the protocols set out by South Carolina.
The first step is filing a petition with the court that includes the names and contact information for both parents, the names and ages of all children the couple shares, the type of custody the parent is requesting and the reasons why the court should grant that request. After that is filed, there is a 30-day period for the other parent to respond, after which there is a temporary hearing which both parents must attend. The court will make a temporary order regarding custody and may order the parents to attend mediation to try to come to an agreement. If the parents are able to agree, the court will approve the parenting plan. If not, the case goes to trial where the couple will go through discovery to collect evidence, witness statements, documents, and other things to back up their case. After the trial, the court will make a decision regarding custody.
What Kind of Evidence Can Secure Custody During Divorce Proceedings?
Parents often describe themselves as willing to do anything to protect their child. When it comes to child custody, parents are often willing to go to great lengths to secure custody because they sincerely believe they are protecting their child from the other parent. Even if there is no abuse or neglect, the belief that the other parent may not parent in the same way can be enough to convince a parent that they must protect their child. This belief is not enough to convince a court, however. Parents need to provide evidence to back up their custody request, particularly if they are asking for sole custody.
Evidence of Which Parent Has Been the Primary Caregiver
One factor that is heavily weighed when the courts are deciding child custody during divorce proceedings is which parent has been the primary caregiver. The primary caregiver often (but not always) has a stronger bond with the child, and when the primary caregiver retains custody, this gives the child continued stability during a time of confusion and stress.
Parents can provide evidence of being the primary caregiver with things such as medical records, income records, and school records. Medical and school records will often indicate which parent attends doctor appointments and parent-teacher conferences. Income records can show that one parent works longer hours than the other. Other things that can prove primary caregiver status would include witness statements or records from a daycare to show who drops off and picks up the child, which parent attends playdates with the child, videos and photos. When using photos and videos, it is important to remember that mothers are often not included in photos because they are working behind the scenes to create those captured moments. Therefore, neither parent should rely too much on videos or photos.
Documentation of Unfit Parenting, Unsafe Lifestyle, or Substance Abuse
If a parent is requesting either sole physical or sole legal custody, documentation that the other parent is not capable of taking care of the child can be essential. Documentation that the other parent is unfit, lives an unsafe lifestyle, or has a substance abuse issue will be particularly important if a parent plans to make this kind of claim.
Documentation of these issues may include police reports or other criminal records, photos or videos of the parent’s home, records indicating drug or alcohol rehabilitation attendance, financial records that show money that may have been spent on drugs or alcohol, witness statements regarding the unfit parent’s behavior, or medical records that indicate abuse or neglect.
Parental Qualifications to Take Care of Any Special Needs a Child Has
Some special needs children have minimal extra needs that either parent, or any other adult, can easily step in and take responsibility for. However, some special needs children have extensive needs, such as feeding or breathing tubes, that can require significant training to manage and large amounts of time to manage. While it is not unreasonable or uncommon for both parents to learn and handle these tasks, in some families, one parent does take on this responsibility alone while the other parent has little to no knowledge of what needs to be done.
If this is the case, it will be critical for the parent to provide evidence that they are the only one qualified to take care of their child’s needs. This may require documentation from doctors or other medical professionals who are aware of who takes care of the child or were part of the process of training that parent. Other methods of proving this may include being able to show the court that the other parent is not familiar with the brands of equipment used, or cannot explain details of how to care for the child’s needs, such as being unable to explain how to change a feeding or breathing tube or how to prepare the child’s nutrition.
Parenting Skills or Lack of Skills
Some parents seem to just naturally know what to do, while others may struggle. Some will take parenting classes to learn skills or improve on the ones they already have. While parenting skills are not the deciding factor for securing custody during divorce proceedings, being able to prove that one parent has more or better parenting skills than the other may help convince a judge if all other factors are approximately equal between the parents.
Evidence of having or lacking parenting skills may include certificates from completing parenting classes, witness statements from others describing the parenting they have seen the person engage in, and other evidence that might be shown as evidence of being the primary caregiver. Attending the child’s events, and preparing a plan for the court that shows how the parent plans to parent post-divorce if they get the custody arrangement they are requesting may also help prove parenting skills.
Physical and Mental Health of Parents
While physical disabilities and mental health conditions are not automatic disqualifications to be a primary parent, being able to show that the parent’s physical and mental health is being properly treated and not declining may be important, depending on the disability or mental health condition in question. This may require medical records, therapist notes, appointment and prescription records, and other sensitive records. If you feel the other parent should not have custody due to a physical disability or mental health condition, a South Carolina divorce attorney with King Law Offices may be able to provide legal assistance with gathering the evidence you may need to prove this claim.
What Not To Say or Do During Divorce Proceedings To Secure Custody
While there are friendly divorces, many become acrimonious, with one or both spouses willing to say or do anything to try to get what they want, whether it is custody of their children or a particular asset. However, when an individual is trying to secure custody of their children during divorce proceedings, the things they say or do with the intention of getting what they want may actually cost them that very thing. Therefore, it is just as important to know what not to say or do as it is to know what they should say or do.
Refrain From Negative Speech
When couples divorce, all the things they did not like about their spouse but ignored because they were married and in love will start to irritate them even more. In an attempt to get custody during divorce proceedings, parents may be tempted to bring up these things to try to prove their case. However, this can cause the court to view that parent as petty or vindictive, rather than protective and caring about their child.
Refrain from speaking negatively about the other parent unless it is related to issues that involve illegal, violent, or abusive behavior, or issues related to substance abuse. If there is no evidence to back up their word, the parent may want to consult with an attorney first to determine how to proceed. Additionally, parents should avoid bringing up petty arguments, complaints, or rants about how the other parent has behaved in the past. They should also avoid speaking with derogatory, sarcastic, or frustrated tones toward the other parent or the judge.
Do Not Withhold Access to the Child
Understandably, parents want to protect their children from anything or anyone they perceive as a threat. If a parent is requesting sole custody during divorce proceedings, they may view their spouse as a danger to their child. They may think it is logical to withhold the child from the other parent when they believe that parent is a danger. However, this can backfire.
First, the court generally does not view withholding the child as a valid method of dealing with any custody or parenting issues. Second, if the withholding parent does not have evidence to back up their concerns, the other parent can claim they are attempting to alienate the child. This can potentially result in the withholding parent receiving less custody than they wanted, or even the other parent getting sole custody.
Do Not Refuse to Cooperate
Married parents cooperate with each other when parenting, making compromises when they need to to ensure a peaceful household and a united front as parents to their child. During divorce proceedings, many parents no longer feel the need to compromise and cooperate and instead often take a “my way or no way” approach. The court may view this as being too rigid and not being willing to co-parent, which can reduce the chances of securing the custody requested.
Instead, be willing to cooperate and be flexible about things that are not as important. For issues that the parent feels are important enough to stand their ground, parents should be willing to explain their concerns to the court and offer alternatives that they find more acceptable. However, they will also need to be willing to accept a judge’s decision, even if they do not agree with it, or risk losing custody.
Avoid Inappropriate Social Media Posts
People share some of the most intimate details of their lives on social media today. From sharing the good times to posting rants about people or places that have wronged them in some way, social media gives many people a sense of community and belonging. Because of that, it makes sense that people would be tempted to make posts regarding their divorce proceedings, including details about the custody battle or why they are irritated with their former spouse. While this may make someone feel better in the moment, particularly if their connections offer supportive feedback, it can hurt their custody case.
Social media posts are public information, regardless of how private an individual has made their profile. Friends or family who enjoy drama or are on the other parent’s side can screenshot posts, and both parties can demand social media records in discovery, including contact lists, posts, and private messages. Therefore, it is always strongly recommended that during divorce proceedings, individuals refrain from posting anything regarding their divorce, custody, their spouse, or any issues with their spouse, spouse’s family, or the shared children. They should also avoid private messages or texts with this information. These posts and messages can be used as part of the custody battle to hurt their case and even prevent them from getting custody at all. These social media posts can also be considered defamation and create other legal troubles.
Communicate Cautiously With the Other Parent
Divorce attorneys may recommend communicating in writing with the other parent. This can be beneficial advice, as the written communication provides a paper trail of evidence about what the parents talk about. However, if the other parent is manipulative, they may manipulate an individual into saying something that can be used against them in court.
Whenever an individual is communicating with their child’s other parent, whether in writing or verbally, they should use caution. Parents should carefully consider any response to ensure it cannot be twisted to imply something they did not mean. They should wait and think about any potential agreements before agreeing to ensure they do not bind themselves to an arrangement they did not want.
Avoid Involving the Child
Depending on the child’s age and the circumstances, it may become necessary for the child to speak to the judge about their preferences, their relationships with each parent, and other details related to the divorce and custody. However, parents should ensure that they avoid involving the child in divorce proceedings or discussing the child’s relationship with the other parent with the child. This can be viewed as attempting to alienate the child from the other parent or coaching them as to what to tell a judge if they are asked questions.
Instead, parents should allow the court to ask the child any necessary questions regarding their preferences, parental relationships or other information. If a parent is concerned that the child has information that may influence a custody decision, the parent should speak with their attorney to determine how to proceed.
Do Not Ignore Court Orders
When a parent does not agree with a court order, or believes that the instructions in that order may endanger their child, they may be tempted to ignore the order and do what they want or what they believe is safest or best for their child. If a parent ignores a court order, S.C. Code §63-3-620 indicates that they can be held in contempt of court and a fine of up to $1,500, a public works sentence of more than 300 hours, or imprisonment for up to one year. Additionally, the judge may modify the order and the parent who violated it may lose more rights to the other parent as a result.
How a South Carolina Divorce Attorney Can Assist With Gaining Child Custody
Navigating child custody during divorce proceedings is emotionally challenging. With an understanding of the factors considered in determining custody, the different types of custody, and the legal procedures to request and potentially be granted custody, parents can reduce their stress. With an attorney who understands the state’s custody laws, the complexities of disputing child custody, and the pressures that come with ending your marriage and fighting for custody of your child, the process can be more manageable and smoother. At King Law Offices, we may be able to advise and guide you through the child custody process as part of your South Carolina divorce. Call (888) 748-KING to schedule a consultation and review the details of your case.