What Factors Do The Courts Consider When Deciding What The Best Interests Of The Child Are?
South Carolina law has no presumption favoring mothers over fathers or fathers over mothers in child custody cases. As noted in S.C. Code § 63-5-30:
The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.
When a child is born out of wedlock, S.C. Code § 63-17-20(B) applies:
Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.
When children are born of a marriage, both parents have full custody rights to the child until the family court issues an order setting custody. When a child is born out of wedlock, the mother has custody until the family court issues an order on that child’s custody but then there is no presumption over whether the mother or father should be awarded custody.
South Carolina Law requires that the family courts determine the best interests of a child in determining child custody. While there is no law requiring that custody be awarded to the primary caretaker, there is an assumption that it will be. South Carolina law dictates the criteria that the family courts should consider in determining custody. Those criteria are as follows, from SC Code Section 63-15-240(B):
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 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;
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.
One of the most important factors in determining custody is which parent has been the primary caretaker of the child. The common belief that the mother usually get custody is based on the mother often being the parent who stays home and takes care of the children. Also, when a child is born out of wedlock, South Carolina law presumes that the mother will have custody until and unless the family court orders otherwise. In general, in any contested child custody case, the court will appoint a guardian ad litem at the first temporary hearing. The guardian ad litem will act as the child’s representative, and will advocate for the best interests of the child. The guardian ad litem may also investigate all aspects of a child’s life, speak to the parties and their witnesses, and may observe the child with each parent and at each parent’s home.
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