March 2013

Lowcountry Lawyers: When Parents Can't Agree

Author: Pam Blachsire, Clark & Stevens, P.A.

Divorce can be the most emotionally exhausting experience many couples will go through. For parents, the uncertainty of how the divorce will impact their relationship with their children often compounds the stress of the process. Although each family’s situation is unique, the following is general information as to how the Family Court will decide custody if parents are unable to agree.

Ultimately, the court’s determination about custody is governed by what a judge concludes is in the “best interest of the child.” Various factors are considered in making this decision, and seldom is any one factor determinative of the outcome. The judge must consider the character, attitude, and stability of each parent as they impact the child. In determining the best custodial arrangement, the court will examine the psychological, environmental and recreational aspects of the child’s life. In sum, the court looks at the totality of circumstances unique to each particular case.

Often the court will appoint a guardian ad litem, whose role is to assist the court in protecting the best interests of a child. The guardian will investigate all aspects of the child’s environment, which often includes interviews with parents, family members, teachers, counselors and others who have insight into what the child needs to thrive.

In private custody disputes, the guardian typically is an attorney (although occasionally non-attorney guardians may be used). The guardian’s task is to present the necessary and unbiased information that a judge would want in order to make a just decision on custody and visitation disputes. While a guardian cannot make explicit custody recommendations unless requested to do so by the court, his or her investigation typically is taken under serious consideration by the Family Court judge.

The court can award sole or joint custody of a child, and it may make distinctions as to physical (actual physical care and residence of the child) and legal (authority to make important decisions in the child’s life) custody. Until recently, South Carolina’s Family Courts frowned upon joint custody, finding it was “typically harmful to the children and not in their best interests.” This view has been changed by recent amendments to South Carolina’s Children’s Code, which allows the court to award either joint or sole custody as it sees fit but does not express a preference between either. Again, the ultimate decision as to the specific custodial arrangement will hinge upon what is determined to be in the child’s best interest.

Another result of the recent amendments to South Carolina’s Children’s Code involves a new requirement for the submission of “parenting plans.” The goal of the law is to ensure that parents are forced to spend time thinking through the practical details of their proposed custody arrangement prior to any hearings. A parenting plan outlines preferences as to the allocation of time to be spent with each parent and who should make major decisions, including the child’s education, medical care, extracurricular activities and religious training. The Family Court will consider these plans before issuing a temporary or final custody order.

A child’s preference can be an important, but not necessarily prevailing, factor in determining custody. The judge must consider the child’s reasonable preference for custody, placing weight upon the preference based upon the child’s age, experience, maturity, judgment and ability to express a preference. Although there are many myths concerning when a child is old enough to decide where he or she can live, there is no magic age in South Carolina until the child turns 18.

When it comes to issues with children, nothing is carved into stone. The Family Court has continuing jurisdiction in all matters relating to children, which means that the Family Court can (and will) continue to decide matters of custody even years after the parents have divorced. If a parent can show that circumstances affecting a child have substantially changed and a modification is in the child’s best interest, custody and visitation can be modified at any time until the child becomes an adult.

Custody is often one of the most complex issues in the Family Court arena. Each case is unique, and seeking guidance from an experienced attorney is often a helpful step in determining the best approach for your family.

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