Custody and visitation are both complicated legal issues. When parents add emotions into the mix, co-parenting can become impossible. Divorcing parents should try and work together to decide what custody and visitation arrangements will work best for their family. If they can’t agree, a judge will have to make these decisions for them.
What is Custody?
Legal custody refers to a parent’s right to make decisions regarding the child’s health, medical and dental care, and general welfare. Parents with legal custody will make decisions regarding the child’s:
- extra-curricular activities, and
- religious training.
The court may award sole (one parent) or joint (both parents) legal custody. Joint legal custody allows both parents to have a say over the major decisions in their child’s life. If parents can’t agree, they can ask the court for guidance. Sole legal custody is uncommon, but courts may award one parent sole custody if the other parent is absent, has a history of abuse, or has a drug or alcohol addiction.
Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or joint physical custody. South Carolina rarely awards joint physical custody, unless both parents agree. If the court awards joint custody, the parenting plan must include:
- detailed arrangements for when and where the child will reside with each parent, and
- how parents will communicate and handle disputes in the future.
Additionally, if parents share joint custody, a judge may designate one parent to have sole authority to make specific decisions about the child. For example, although parents are joint custodians of their child, a judge may give the father authority over educational decisions, while asking the mother to make all religions decisions for the child.
Rarely, courts in South Carolina may award divided custody. If a family has more than one child, the court may find it beneficial that one child lives with each parent, separately. Courts only award divided custody in exceptional circumstances.
If a judge awards one parent sole physical custody, the court refers to them as the custodial parent. Regardless of the official title given to each parent, both parents have equal rights to the custody of their children. If either parent requests joint custody, the court must evaluate whether it’s in the child’s best interest. Despite what many parents believe, courts don’t favor one parent because of their age or sex.
What Is Parenting Time?
If a court awards one parent most of the parental responsibilities, the next step is to determine a parenting time (visitation) schedule for the noncustodial parent and the child. Parents should work together to determine the ideal parenting time schedule for everyone, especially the children. When creating a calendar for your family, you should consider:
- the child’s school and extra-curricular schedule
- each parent’s employment schedule
- whether mid-week visitation will benefit the child
- visitation on the weekends, holidays, and school breaks
- which parent will be responsible for transportation costs.
Although noncustodial parents will have less physical time with their children, they continue to have the right to make day-to-day decisions while their children are in their care.
How Does the Court Determine Custody?
Every family has individual needs, and courts encourage parents to work together to decide the parenting plan that is best for their family. When parents create their own plan, they are less likely to ask the court to change it later. If parents can’t agree, a court will decide custody based on the best interests of the child. During a custody hearing, the judge will consider:
- the child’s temperament and developmental needs
- each parent’s ability to understand and meet the child’s needs
- the child’s preference, if the child is of a sufficient age and maturity level to form a reasonable opinion
- each parent’s preference
- the child’s past and current interaction with each parent, siblings, and other family members
- each parent’s actions to encourage the continuing parent-child relationship between the child and the other parent
- each parent’s compliance with past court orders
- any history of a parent’s manipulative behavior to involve the child in the parents’ disputes
- any effort by either parent to disparage the other parent in front of the child
- each parent’s ability to be actively involved in the child’s life
- the child’s adjustment to their home, school, and community
- both parent’s mental and physical health
- the child’s cultural and spiritual background
- whether the child has been abused or neglected
- whether one parent perpetrated domestic violence or child abuse
- whether one parent has relocated more than 100 miles from the child’s primary residence (unless they relocated for safety reasons), and
- any other factors the judge finds necessary.
The judge will decide custody based on the evidence presented by each parent. Evidence may include phone records, emails, social media, doctors, friends, or family. Once the court creates a parenting plan, both parents must follow it precisely. If either parent wants to change the arrangement later, they will need to ask the court for a hearing.
Modifying Custody and Visitation
Every court agrees that the number one priority in custody cases is always the best interest of the child. Stability is essential, so changing custody is not easy, but parenting plans aren’t permanent. To convince the court to change custody, a parent must prove:
- a material change in circumstances
- the material change in circumstances happened after the initial family court order, and
- the material change substantially affects the child’s best interest.
It’s not enough to show the court that a parent has become more stable, or become a better parent. Parents asking for a change to custody must be prepared to prove how altering custody arrangements will benefit the child. Examples of material changes may include relocating to a home that is closer to the child and has additional space where the child can visit. If a parent is asking for a reduction in the noncustodial parent's time, that parent will need to show why the current arrangement is not in the child's best interests—for example, if the noncustodial parent is abusing drugs or alcohol or is neglecting the child.