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 will not 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 is 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?
The South Carolina Statutes Section 63-5-30 establishes that both parents have equal rights and responsibilities to their children, and neither parent can claim to have rights which may override the other. Additionally, both parents have an equal right to access all records, including school and medical, and the ability to participate in their child’s school activities, unless prohibited by the court. As previously mentioned, South Carolina does have separate laws relating to child custody if the parents have the child out-of-wedlock. Section 63-17-20(B) 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
As can be seen in the South Carolina statute, a father must establish paternity before seeking custody of a child. An action to establish paternity may be brought by a child, the natural mother, any person taking care of the child, a person claiming to be the father, or an authorized agency. Specifically, the father may bring a paternity action to get custody or visitation rights to spend time with their child. Moreover, South Carolina specifies that “any person who has sexual intercourse in this State thereby submits to the jurisdiction of this State.” Essentially, a paternity action will attach to the location where the intercourse takes place. In a case where the father is from a state other than South Carolina, so long as the sexual intercourse occurred in South Carolina, an action may be brought in the state.
As soon as an action has been commenced, the court, upon a motion by either the mother or father, may order the natural mother, the alleged father, and the child to submit to genetic tests to determine paternity. If a father refuses to take a genetic test, that refusal can be used as evidence of paternity.
In addition to the genetic test results, Section 63-17-60 lists the following evidence as admissible when the court is making a determination of paternity: a refusal to submit to genetic testing, statistical probability testing, a verified voluntary acknowledgement of paternity, a foreign paternity determination, birth certificate with putative father and mother’s signature, expert opinion as to the time of conception, testimony of a husband, and any other relevant and competent evidence deemed admissible by the court.
Once these factors have been considered, a court will establish whether the putative father is the natural father of the child. If a man is not determined to be the natural father by the court, then the rights and duties of Section 63-5-30 will no longer apply to that individual.
Custody After Paternity Is Established
Once paternity is established, both parents will maintain equal rights before the court. Neither the father nor the mother will be given any preference, and the court will award custody based on the best interest of the child’s interests.
In determining the best interest of the child, the court will consider:
- Each parent’s character, fitness, attitude
- Each parent’s relationship with the child
- Each parent’s ability to care for the child
- Each parent’s living situation
- Child’s health
- Child’s age and preferences
- Child’s sex
Following evidence to determine the best interest of the child, Section 63-15-230 grants the court the ability to either award joint custody to both parents or sole custody to either parent. However, in spite of the custody determination, the court may split parenting time which is in the best interest of the child.
Contact Following Custody Determination
Following an order by the court granting sole custody to one parent, the custodial parent, except in cases of abuse, neglect, or abandonment, should attempt to keep an open line of communication either by telephone or electronically between the child and noncustodial parent as provided by the court order if it is in the best interest of the child. Similarly, in situations where joint custody is granted, each parent should keep the same line of communication open between the child and the other parent.
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 initial consultation, complete a contact form or call (888) 748-KING.