When considering custody in the state of South Carolina, there are two primary terms which you need to be familiar with. They are “legal custody” and “physical custody.” They are not the same thing.
Legal Custody
Legal custody is decision-making power. It is the ability to make decisions about your child’s life. Legal custody can be in two forms: sole legal custody and joint legal custody.
With sole legal custody, only one parent has the decision making power. In order to be awarded sole legal custody, it must be in the child’s best interest to remove decision making power from the other parent. This is a big hurdle to jump.
Joint legal custody is where both parents share the decision making power. The preference in South Carolina is for joint legal custody. In this scenario parents have to keep one another informed of all decisions regarding their child. Issues regarding medical decisions, educational decisions, decisions regarding religious training, etc. all have to be discussed with the other parent. If after a good-faith effort, the parents cannot make a decision, generally one parent will have final decision making authority.
If a parent is given primary decision making authority, this is known as both parents having joint legal custody, with one parent having primary legal custody. Often orders are written to state that one parent has "primary decision making authority" over the minor child, so that it is understood that both parents still share a joint legal custody relationship.
Physical Custody
Physical custody is different from legal custody. It simply means who the child is going to live with the majority of the time. There four (4) kinds of physical custody—sole physical custody, joint physical custody, and shared physical custody or primary physical custody and visitation.
Sole Physical Custody
Sole physical custody means that one parent gets all the time with the child. It is not shared with the other parent. In this situation, the court has usually found that the other parent has made some parenting and/or life decisions that are not in the child's best interest. The judge may order supervised or unsupervised visitation.
Joint Physical Custody
Joint physical custody is where both parents get equal time with the child. In this scenario, the parents would share the child week to week. Courts in South Carolina usually do not like this arrangement. As it is felt that is is disruptive for the child.
Shared Physical Custody with Visitation
Shared physical custody or primary physical custody and visitation is the most favored in South Carolina. It means that a court will award what is called “primary physical custody” to one parent and “visitation” to the other parent. The child would live primarily with one parent and have a liberal or set visitation schedule with the other parent. The custodial parent is the primary physical custodial parent.
New Custody Trends
Nesting
A new trend in parenting is "nesting." In this arrangement, the parents maintain 2 home. The primary home that was the marital residence and a separate home or apartment. The children will always remain and live in the primary home and the parents rotate out week to week. Many parents have felt that this was a way to maintain stability for their children. Only time will tell how this approach is working.
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