Court Procedures for Shared Custody in South Carolina
By Elizabeth Rayne, J.D.
Understanding the custody procedure in South Carolina can help parents better prepare and present their case to a judge. The process operates similar to a trial, with parties exchanging information in advance and attempting to reach a mutual resolution, based in either sole or shared custody arrangements. If the parents cannot effectively resolve these issues to the satisfaction of the court, a judge will issue an order following an analysis of the factors related to the best interest of the child..
In divorce cases, either party may request a temporary hearing, also known as a pendente lite hearing. During the hearing, which is usually quite brief, the court may determine issues such as custody while the parties work out the other terms of the divorce. The custody arrangement awarded during the temporary hearing is only in effect until the final hearing, or until the parents agree on a different parenting plan.
In some cases, the next step after the temporary custody determination is the discovery phase. During this process, the parties exchange information and evidence about any relevant factors to the divorce, such as financial information. Discovery allows each part to determine the relative strengths and weaknesses of the case. Discovery is not automatic in divorce cases, but either party may file a motion to request discovery.
Parenting Plan and Guardian Ad Litem
South Carolina courts encourage parents to reach their own parenting plan to avoid going to court. The parents may decide on how much time the child spends with each parent, who pays for what expenses, how decisions for the child are made, and similar issues. When the parents cannot decide, the decision will be left to the court. To protect the interests of the child, the court may appoint a guardian ad litem, who will be responsible for representing the interests of the child. The guardian ad litem may make recommendations for the custody arrangement and may also present evidence at the hearing regarding what the guardian ad litem considers to be the best custody and visitation structure from the child’s perspective.
Types of Custody
In South Carolina, the court may award sole or shared custody. When a parent has sole custody, the child primarily lives with one parent while the other parent may have visitation rights. The parents may share legal custody, meaning both parents make decisions on behalf of the child. The parents may also have court-ordered joint or shared physical custody, meaning that each parent spends 30 percent or more with the child, or greater than 109 overnights a year. Additionally, with joint physical custody, both parents contribute to the child's expenses, in addition to the payment of child support.
Factors in Awarding Custody
The court has broad discretion in considering a variety of factors when awarding custody. Overall, the court is primarily concerned with what is in the best interest of the child. To this end, the court may consider the grounds for divorce. For example, if, in the divorce complaint, a spouse alleges the other spouse has a habitual drug abuse problem, has demonstrated physical cruelty, or has subjected his children to evidence of an adulterous affair, the court will consider these factors when making a custody determination. Other factors the court may consider include: which parent is the children's primary caretaker; what are the spiritual, emotional, educational, medical and physical needs of the child; what is each parent's level of emotional stability; and what are the circumstances of each parent. In some cases, depending on the age and maturity level of the child, the court may consider the child's preferences for custody.
Once the court issues a custody order, either party has the option to motion the court to modify the order. However, the parent must demonstrate that a substantial and material change of circumstances has occurred since the time of the original order. Additionally, such changes must affect the welfare of the child so that it would be in the child's best interest to change the custody arrangement.
- South Carolina Legislature: Title 63 - South Carolina Children's Code
- WomensLaw.org: South Carolina Custody
- Melissa F. Brown, Esq.: South Carolina Family Court Process
- South Carolina Family Law Blog: Basic Elements of a Parenting Plan
- South Carolina Judicial Department: Kisling v. Allison
- Floyd v. Morgan, 383 S.C. 469 (2009)
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."