When children are involved, negotiations become even more contentious and painful. At Provence Messervy, we believe it's our duty to help clients deal with custody and parental rights issues to reduce the negative impact on the kids caught up in the process. The first step is making good decisions early in the process to avoid later modifications and continued stress. However, we recognize that custody issues don't end when the divorce is final and that circumstances can change, which requires court intervention. We also recognize that non-married couples, grandparents, same sex couples, relocation and remarriage can all complicate custody issues. We're here to help. Here are a few of the most common child custody questions:
How does the judge decide who gets custody? South Carolina law requires the Family Court to determine the “best interests of the child” in any child custody case. Although there is no rule of law requiring that custody be awarded to the primary caretaker, this is often the assumption. It is important to note that in South Carolina, the "Tender Years Doctrine" has been abolished, so it's no longer presumed that a mother will get custody of an infant child.
What constitutes "best interest of the child?" Every judge is different, but South Carolina law does list several factors a judge should consider. Those include:
the temperament and developmental needs of the child;
the capacity and the disposition of the parents to understand and meet the needs of the child;
the preferences of each child;
the wishes of the parents as to custody;
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;
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;
the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
any effort by one parent to disparage the other parent in front of the child;
the ability of each parent to be actively involved in the life of the child;
the child’s adjustment to his or her home, school, and community environments;
the stability of the child’s existing and proposed residences;
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;
the child’s cultural and spiritual background;
whether the child or a sibling of the child has been abused or neglected;
whether one parent has perpetrated domestic violence, 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;
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 other factors as the court considers necessary.
Do we have to have a guardian ad litem involved in our case? In most contested child custody cases, the court appoints a guardian ad litem at the first hearing or by agreements of the parties. The guardian will act as the child’s representative and advocates for the best interests of the child in all proceedings. The guardian may investigate various aspects of the child’s life, speak to the parties and their witnesses and might observe the child with each parent and visit each parent’s home. Some guardians are attorneys while others might be social workers or similarly trained individuals.
What's the difference between legal and physical custody? Legal custody deals with the decision making powers for your children. For example, if you have joint legal custody, both parents have equal say in decisions such as which school the child attends, healthcare matters, religious upbringing, etc. If you have sole legal custody, you can make these decisions on your own (although consulting a co-parent is always recommended). Meanwhile, physical custody refers to the person with whom the child is with on a daily basis. This is normally the custodian of the child. A couple with joint physical custody means each parent has significant periods of physical custody (not always 50/50). It's important to note that parents might have joint legal custody without having joint physical custody or vice versa.
Parents always have lots of questions about custody and that's why we're here. Please call us or schedule an appointment online today so we can connect you with an experienced attorney to give you the advice you need.