When considering a divorce from your spouse or a person with whom you are or were intimately involved with and have a child in common there are a number of considerations that you should be aware of. First and foremost is what would be best for your child? South Carolina courts will always look to the best interest of the child (discussed below), and that should also be primary when you are considering child custody, joint-custody, or some other sharing arrangement.
There may be other alternatives to consider before going to a divorce trial and a judge to decide the child custody issues for you and the other party. For example, mediation is mandatory now in all South Carolina counties and you will likely be ordered to attend mediation in a good faith attempt to resolve issues related to your divorce. In mediation you have the opportunity to create a more tailored fit to potential child custody issues and to work out your concerns in front of a neutral party. This has multiple benefits. First, it allows you to work collaboratively to try and reach a win-win outcome for you, your child, and the other party rather than in a scorched-earth, winner-take-all litigation in front of a judge. Second, your child will be able to observe both parties working through disagreements rather than utilizing the courts to settle the dispute. Finally, mediation is a first “pass.” There is no requirement that you successfully create an agreement during mediation, but on the other hand, you do not have a judge’s order and appeals to contend with depending on the outcome of the divorce trial.
Other considerations before entering into a divorce proceeding is the relative strength of your case and arguments. In consultation with your attorney, you should be be advised on the likely legal conclusions the judge will make based on the facts in your situation. This will help create expectations and strategy before going to trial. There may be certain facts or situations which will help and also hurt aspects of your child custody case.
Best Interests of the Child
As mentioned, South Carolina will look to the best interests of the child when deciding custody and visitation issues. What exactly does that mean? When awarding custody the court will take into account the following factors which include but are not limited to:
- the child’s behavior and developmental needs;
- the parents candor and ability to raise the child;
- the child’s preference over one parent or another;
- the parent’s wishes pertaining to custody;
- the past and current interactions between the child and one or both parents, including other individuals who will have an impact on the determination of best interests (such as a grandparent);
- each parent’s interactions with the other and compliance with court orders (such as coercing the child to pick one parent over the other or disparaging the other parent in front of the child);
- the ability of each parent to be actively involved;
- the child’s adjustment to their surroundings (home, school, activities);
- stability and environment of the child’s current and/or proposed home;
- the mental and physical health of all individuals involved (including parents, the child, other siblings, or others who will have an impact on the upbringing and decision-making); and
- whether the child or a sibling has been abused or neglected.
(Found in South Carolina Code of Laws, SECTION 63-15-240).
When determining a child’s preferences as to custody, the court will consider the child’s age, experience, maturity, judgment, and ability to express a preference one way or another.
There are generally two types of custody – joint and sole. Joint custody is where you and the other party are jointly responsible for major decisions concerning your child such as education, medical and dental care, extracurricular activities, and religious upbringing. A judge is also free to modify aspects of the joint custody order so that one parent may be the sole decision maker for certain aspects such as school choice, while both parties are equally responsible for all other major decisions. This is found in South Carolina Code of Laws, SECTION 63-15-210. Sole custody is where only you or the the party is responsible for all decisions in your child’s upbringing (religion, education, medical care, interactions with other individuals).
You also should submit a parenting plan to the court which reflect your preferences, such as allocating parenting time, major decisions such as education, medical care, primary residence, and extracurricular activities (outside school activities, sports, sponsored clubs). While failing to provide a parenting plan will not automatically disqualify you for custody, it is imperative that you consider all your options and present the most compelling case that you can. You should retain an attorney to help you draft and revise this plan before submitting it to the court. Parties may also file a joint parenting plan. In the case of contested child custody, a joint plan may not be feasible. However, as mentioned, if you are able to resolve some of the issues before trial there is a greater chance of both parties having a smoother time at trial. See South Carolina Code of Laws, SECTION 63-15-220.
The judge’s order will include either joint or sole custody, and typically approval of the parenting plan (or approval with modifications). If there is joint custody then the order will resolve issues such as:
- Residential arrangements;
- Parental communications such as time, place, and manner (phone, email) especially concerning major decisions such as education, health, and extracurricular activities; and
- Allocated parenting time between you and the other party (weekends, holidays).
Contacting Robert Clark – Family Law Attorney
Child custody cases are complex in both the facts and legal issues presented. With a focus on the best interest of the child the court will be making highly intensive factual inquiry which requires the experience of a seasoned Greenville family law attorney to help present your case. When you are ready to divorce, consult with Robert Clark, Attorney at Law, as soon as possible so that you can begin the process immediately and navigate a course of action that may be beneficial in your situation. Robert Clark has decades’ worth of experience in and out of the courtroom helping families like yours navigate the complicated ins and outs of child custody and related issues.