When married parents separate and divorce, both have equal rights to obtain custody of their children until a judge decides on issues of visitation, custody, and support. However, different laws apply to unwed parents. If the parents have never been married, there can be unique custody issues. The main legal issue is determining paternity. Until a father has established paternity, he won’t be able to seek custody.
At King Law Offices, our family law attorneys in South Carolina have settled many cases involving custody of a child whose parents never wed. In some ways, family court cases concerning unmarried parents can be more straightforward than a conventional divorce because they do not involve dividing assets. On the other hand, custody claims between unmarried parents can be challenging because in many cases, the child is born during a brief relationship, and there’s a lack of confidence between parents. Keep reading to learn more about custody laws and the rights of unmarried parents in South Carolina.
Does the Father Have Equal Rights to a Child in South Carolina?
Under South Carolina Statutes Section 63-5-30, parents have equal rights, power, and responsibilities to their children, and neither parent’s rights are supreme to the other. However, in the case of a child born out of wedlock, Section 63-17-20(B) claims that the natural mother has sole custody. This law specifically states:
“Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.”
Establishing Paternity in South Carolina
Before a father can seek custody, he needs to establish paternity. The man claiming paternity can bring an action to establish paternity, as can the natural mother of the child.
A mother may bring a paternity case because she wants the father to provide financial support for the child. South Carolina law specifies that anyone who has sexual intercourse and fathers a child in the state is subject to South Carolina’s jurisdiction. Even in cases involving a one-night stand, the mother can bring an action for paternity and support in South Carolina, no matter which state the father lives. The alleged father can choose to acknowledge paternity or contest paternity. If he does nothing, he may be determined to be the father by default.
Additionally, a father may bring a paternity action to get custody or visitation rights to spend time with their child. Whether for full custody or visitation, the court can order genetic testing to determine paternity. If a father refuses to take a genetic test, that refusal can be used as evidence of paternity.
Rights and Responsibilities of Paternity
Paternity comes with rights and responsibilities. Fathers can petition the court for visitation or custody rights but may also need to support their child financially. If a man contests paternity and the child is found not to be theirs, they won’t have to support the child financially, but they may also lose any right to see the child.
That can sometimes present a difficult situation if a man has been acting as a child’s father for a considerable time. The man may be unsure whether he should acknowledge paternity.
Custody After Paternity Is Established
Once paternity is established, both parents will be on equal footing before the court. Neither the father nor mother will be given any preference, and the court will award custody based on the child’s best interests.
The court will look at many factors to determine custody, including:
- The child’s health
- Each parent’s relationship with the child
- Each parent’s living situation
- Each parent’s capacity to care for the child
- Whether there is a history of family violence
- Substance abuse by either parent
- The child’s ties to their home, school, and other relatives in the area
- The child’s age and preferences
Either parent may be awarded sole custody, or the court can choose to give each parent joint custody. While each case is unique, it’s becoming increasingly common for family court judges in South Carolina to award joint custody to parents whenever suitable.
Consult Experienced South Carolina Family Law Attorneys Today
If you are involved in a paternity case, be sure you understand how this determination could affect a potential custody dispute. Consult a South Carolina family law attorney before you take any legal actions that could have unintended consequences. Our attorneys can review with you all potential legal avenues at King Law Offices and advise you on your rights, your potential obligations, and the most promising approach with your best interests in mind. When you partner with King Law Offices, we work as a team to identify the essential information for each case. With the combined efforts of our team-approach, we develop a strong legal strategy with a continued focus on bringing our clients to a better place.
We understand the challenges involved in any family law matter. Our goal is to listen to your concerns and help guide you through this process. Visit us at one of our 18 office locations, including in Greer, Spartanburg and Gaffney, to speak with an experienced South Carolina family law attorney. To schedule your free initial consultation, complete a contact form or call (888) 748-KING.