How Do Courts Determine Best Interest of the Child in a South Carolina Custody Case?

Two Types of Child Custody in South Carolina

Under South Carolina law, child custody refers to two types of custody: legal custody, which is the authority to make significant decisions regarding the child, and physical custody, which refers to the time a child actually spends with a parent, also known as visitation or parenting time. In the past, under what was known as the tender years doctrine, young children were placed in the custody of their mother. South Carolina abandoned the tender years doctrine in the mid-1990s in favor of the best interest of the child standard.

South Carolina’s Best Interest of the Child Standard

South Carolina’s custody and visitation plans can vary greatly. In one situation, one parent may have sole physical and legal custody of the child. In another family, both parents may share legal custody, but one parent has primary physical custody, meaning the child spends more than fifty percent of his or her time with that parent. In yet another family, the parents may share fifty-fifty legal and physical custody.

You may be familiar with the concept of split custody, also known as divided custody, which famously played a role in the movie The Parent Trap. In split custody, one parent has custody of one child and the other parent has custody of another child. While South Carolina law does allow for split custody, the courts generally regard this arrangement as not being in the best interest of the children so it is not often used. The best interest of the child standard is used to help identify what combination of custodial authority will work best for each individual child.

South Carolina’s Best Interest of the Child Factors

Under South Carolina law, the best interest of the child standard is a discretionary standard, meaning the judge chooses whether or not to consider the factors when determining child custody and a child visitation schedule in South Carolina.

South Carolina Code section 63-15-240(b) lists seventeen child custody factors to be considered when determining best interest of the child:

(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.

Because this standard is discretionary, the courts are not required to consider all seventeen factors in every case. Rather, the courts tend to focus on a smaller subset of the factors, as the Supreme Court of South Carolina has explained:

In a custody case, the best interest of the child is the controlling factor. The family court considers several factors in determining the best interest of the child, including: who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties (including [Guardian ad Litem], expert witnesses, and the children); and the age, health, and sex of the children. When determining to whom custody shall be awarded, all the conflicting rules and presumptions should be weighed together with all the circumstances of the particular case, and all relevant factors must be taken into consideration. (Internal citations omitted).

Special Note For South Carolina Military Families

South Carolina’s military families may be concerned that their military service could be used against them when determining the best interest of the child. South Carolina’s Military Parent Equal Protection Act, enacted in 2009, specifically prevents the courts from using deployment (which is not limited to overseas or combat deployment) as the sole basis for denying or modifying permanent custody.

Contact Brinkley Law Firm for Your Consultation Today

Navigating custody and visitation can be incredibly complicated. Having a lawyer by your side can protect your interests and prevent missteps. If you are considering divorce or need help navigating post divorce custody issues, Brinkley Law Firm, LLC can guide you through the process. As experienced Charleston family law attorneys with a strong track record of helping families navigate difficult situations, we understand the emotional and legal complexities of post-divorce parenting. Our team is committed to helping you find a solution that works best for your family while protecting your rights.

Contact Brinkley Law Firm today to schedule a consultation and learn more about how we can assist you in creating a plan that meets your needs. Together, we can help you through this challenging time and build a brighter future for your family.