The most important people in our lives are our children. As parents, we work hard every day to provide for their basic needs, to nurture their education and development, and to ensure future opportunities for them. These commitments do not change simply because parents separate or divorce. Before, during and after the separation of couples with children, they can and should continue to focus on the well-being of their children, by working together to address issues in their children’s lives.
Unfortunately, parents are not always able to achieve this ideal standard. Conflict in a relationship can inhibit parents from keeping their children’s interests as primary. Mental health and substance abuse issues may play a role. In many cases, two dedicated and focused parents simply have a reasonable disagreement on issues affecting their child or children.
When parents cannot agree as to matters affecting their children, the Family Court makes decisions, and issues orders, relating to child custody and visitation. It is useful to have a basic understanding of the different types of custody arrangements recognized by the South Carolina Family Courts.
Sole Custody “means a person, including, but not limited to, a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.”
Joint custody “means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions”
These definitions are found in section 63-15-210 of the South Carolina Code of Laws.
A parent with sole custody can make decisions regarding major issues affecting his or her child, without even consulting the other parent regarding the matter. In contrast, in a joint custody scenario, one parent is the primary custodian and the other parent is the secondary custodian. The primary custodian will have the “tie breaking vote” when it comes to major decisions affecting the children. However, the primary custodian also has a duty to consult with the secondary custodian, to seek his or her input into the matter at issue.
Shared custody, also called “divided custody,” refers to a scenario in which neither parent is primary; instead, the parents must work together to reach an agreement on any major issue affecting their child. If the parents cannot do so, the issue is typically referred to mediation. If mediation is unsuccessful, the issue is referred to arbitration, and a third party will make the decision in lieu of either parent.
“Visitation” refers to the actual time a child is in the physical custody of a parent. Visitation often is discussed with reference to a “parenting plan,” which sets forth the weeks, days and times, including holidays, that a child or children are with either parent throughout the year. Regardless of the type of custodial arrangement, parents should strive to work together to craft a parenting plan that best serves their needs and their children’s. Parenting plans are addressed in section 63-15-220(A) of the South Carolina Code of Laws, which provides:
“At all temporary hearings where custody is contested, each parent must prepare, file, and submit to the court a parenting plan, which reflects parental preferences, the allocation of parenting time to be spent with each parent, and major decisions, including, but not limited to, the child’s education, medical and dental care, extracurricular activities and religious training. However, the parties may elect to prepare, file, and submit a joint parenting plan. The court shall issue temporary and final custody orders only after considering these parenting plans; however, the failure by a party to submit a parenting plan to the court does not preclude the court from issuing a temporary or final custody order.”
Although the South Carolina Family Court recognizes each of the custody arrangements described here, it generally disfavors ordering joint custody in a contested case, and never will order shared custody in a contested case. Thus, if parents are able to reach a custody agreement with shared custody, or joint custody, and a liberal parenting plan (e.g. “week on-week off”), then the Court usually will approve the agreement and adopt it as its order. However, if the parents cannot reach an agreement, the Court will make a decision as to which parent should be the primary, or sole custodian, and this parent likely will have the children in his or her physical custody the majority of the time.
In reaching this decision on custody in a contested case, the Court is always directed to consider and determine the “best interests of the children,” specifically with reference to the following factors, found in Section 63-15-240 of the South Carolina Code:
(1) the temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) the preferences of each child;
(4) the wishes of the parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
(6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
(8) any effort by one parent to disparage the other parent in front of the child;
(9) the ability of each parent to be actively involved in the life of the child;
(10) the child’s adjustment to his or her home, school, and community environments;
(11) the stability of the child’s existing and proposed residences;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
(13) the child’s cultural and spiritual background;
(14) whether the child or a sibling of the child has been abused or neglected;
(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
(16) whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and
(17) other factors as the court considers necessary.
At Prenner Family Law and Mediation, we have significant experience in guiding parents through the issues they face during a separation involving children. Mr. Prenner is the proud father of two children, and his experience as a parent gives him perspective on the issues parents face every day. At the same time, his experience in family law matters gives him insight into addressing these issues in a manner that emphasizes parents’ ability to work together, and protects children and parents alike from the emotional and financial costs of protracted litigation.