Child Custody & Visitation Lawyer
Trusted Child Custody & Visitation Lawyer Fighting for Your Parental Rights
Table of Contents
Frequently Asked Questions About Child Custody & Visitation
Is it true that custody is always granted to the Mother?
No, our law provides that each parent comes into a court on an equal playing field when seeking custody. However, if the mother is deemed fit, courts generally do place a child or children with the mother and order contact with the other parent. While custody may be placed with one parent under a Temporary Order, this does not necessarily mean that the same parent will get primary custody at a final hearing.
Is there any one particular factor that Courts consider in awarding custody to a parent?
The Court is to consider several factors in making a final award of custody, including but not limited to, the temperament and needs of the child, the capacity of the parent to meet the needs of the child, the actions of each parent to encourage the parent-child relationship, the stability of each parent’s home, and other factors. While all of these and other factors are relevant and important, if each parent is equal grounds, the tie-breaking factor often is the ability of each parent to facilitate a relationship with the other parent. Courts want to see parents try to co-parent and to get along as much as possible. If a parent is unwilling to co-parent or work with the other parent, this may prove to be problematic in the long run for that parent.
How much does the likability of a party by the Court play into custody determinations?
It matters how you present as a witness to a Judge. If a party is evasive in answering questions, is dishonest, or generally just does not present well, these factors can play a part in how the court views that party in their ultimate decisions.
Understanding Child Custody and Visitation Law
We understand separation and divorce are never easy, leaving you in fear of what may happen to you and to your children in this next phase.
That is why, when possible, we strive to resolve these most personal matters expeditiously by coming to an agreement with terms that are satisfying to you and that provide you with peace of mind.
Agreements allow for more control of your personalized circumstances and more creativity in what and how you handle your family matters as opposed to what a court of law can do.
South Carolina Family Courts always strive for parents to work these issues out amongst themselves as much as possible. They recognize that there is no better person to determine the outcome of your family than you.
While it is always ideal for parents to be able to determine their own shared parenting time without the necessity of a stranger in a court room doing so, this is not always possible. When an agreement cannot be reached, litigation is required.
Sometimes mediation is a mechanism to try to resolve your differences in a less acrimonious way. While mediation is a mandated process in contested cases, it can be voluntarily agreed to by the parties prior to filing a contested case to try to resolve your differences. Mediation is a process whereby the parties and their respective counsel utilize a third-party neutral which could be a retired Family Court Judge or certified mediator to try to resolve the issues between you.
A successful mediation process can result in the execution of a written settlement agreement which is typically approved by the Family Court and made a court order. In doing so, each party gives up their right to a trial on the contested issues because they have been resolved in the execution of a written agreement.
However, should your custody matter remain litigated, our Family Courts make custody and visitation determinations using the “best interest of the child” standard. In doing so, our courts are required to consider certain factors outlined by law including the stability of each parent’s home, the ability of either parent to meet the child’s emotional, physical, and other needs, the mental and moral fitness of each parent, and several other factors.
Why You Need a Child Custody Lawyer
Because these cases can be highly contested and emotional, you are better served to have experienced legal counsel assisting you with this process. Without appropriate representation, you can find yourself stuck with an order that will affect you and your children adversely for years.
Even if you are not represented, the rules of evidence and knowledge of the law apply to you, meaning that you are expected to know the law no differently than an attorney which is why it is important that you seek legal counsel immediately and do not delay. Failure to obtain appropriate representation and timely could prejudice you in your case.
Various experts may be appointed by the court or hired by you to assist the court in making its overall custody and visitation decisions. An expert may be a psychologist or pediatrician to provide necessary opinion testimony to support your case.
In each contested case, a Guardian ad Litem is appointed to represent your child or children. A Guardian ad Litem is usually an attorney but could be a nonlawyer who has been certified to become a Guardian ad Litem. The Guardian has his and her own hourly rates that the parties usually are equally responsible for paying unless the court orders otherwise.
Their role is to investigate child related issues only and will have access to the child’s and parties’ medical and mental health records, will speak to each party and the witnesses for each party, and must conduct their own fact finding investigation to prepare their independent report for the court.
South Carolina law requires that the court weigh each parent’s ability to be the custodial parent equally meaning a mother is not to be favored over a father regarding custody.
Most cases require filing a motion for an initial hearing called a Temporary Hearing. At this hearing which is before a Judge, each party will be required to present Affidavits, Financial Declarations, and any supporting evidence setting out each party’s positions. The court will listen to the arguments of counsel, read the materials submitted, and issue a ruling as to who will be the custodial parent, the visiting parent’s schedule, what the child support will be, and any other relief requested by the parties.
While our courts will issue Temporary Orders setting the custodial parent and parenting time for each party, these orders are meant to be without prejudice, meaning they can be subject to modification at a final hearing in your case.
Types of Child Custody Arrangements
Over the years in South Carolina, our case law has swung the pendulum back and forth between having a primary parent with visitation every other weekend, to more equal parenting time between parents, to back now favoring a primary home base for your children with a more liberal visitation schedule to the visiting parent. Of course, each case has a specific set of facts that may influence the parenting time.
The “standard visitation” schedule usually includes every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. There are derivations of this alternate weekend schedule, such as Thursday at 6:00 p.m. until Sunday at 6:00 p.m. or Monday morning, returning the children to school on time.
Each County typically has a “standard summer and holiday visitation schedule” which sets parental sharing of these holidays and summer which may vary some by County.
While shared or equal parenting time is not favored in South Carolina, nothing prohibits you from agreeing to equal parenting time by way of your own written agreement.
Legal Custody
Legal custody refers to which parent has final decision-making over the children regarding their healthcare, education, extracurricular activities and religious upbringing. You can expect that the parent who is awarded primary physical custody will have primary legal custody of the children.
Physical Custody
Physical custody refers to the parent who has the children primarily living with him or her. A visitation schedule for the other parent is ordered for the rotation of your children between homes.
Sole Custody
Sole Custody is a type of legal custody arrangement where a parent can make all legal decisions concerning the children without consulting with the other parent.
Joint Custody
Joint custody is a type of legal custody arrangement where a parent has a duty to consult and include the noncustodial parent on all major decisions concerning the minor child, elicit his or her opinion, before making the final decision in this regard.
How Visitation Rights Are Determined
Visitation rights are determined on the “best interest of the child” standard based upon the factual circumstances of your case. This means that the Court has discretion in determining which parent is awarded custody and which parent is awarded visitation rights.
In circumstances where both parents inappropriately involve the children in litigation or adult matters or attempt to estrange the children from the other parent, courts may consider awarding the parents a week-to-week visitation schedule. Otherwise, our courts generally favor a home base for the children with a visitation schedule to the other parent consistent with every other weekend visitation and some mid-week visitation during the weeks the noncustodial parent does not have the children.
Best Interests of the Child Standard
The best interest of the child standard requires the Court to consider several factors by law concerning who should be awarded primary custody and what the visitation schedule should look like. These factors include which parent has been the primary caregiver of the children, the temperament of each parent, the temperament and developmental needs of each child, the capacity of each parent to meet the needs of the child, the child’s preference, the actions of each parent to encourage the parent-child relationship between the child and the other parent, the effort by one parent to disparage the other in front of the child, the ability of each parent to be actively involved in the life of the child, the stability of the child’s existing and proposed residences, the mental and physical health of the parents, whether there has been abuse or neglect of the child by a parent or domestic violence perpetrated in the home by a parent, the relocation of a parent more than 100 miles from the child’s primary residence in the past year, and other factors the court deems appropriate.
Supervised vs. Unsupervised Visitation
The court has the authority to order supervised or unsupervised visitation. Supervised visitation typically takes place when a parent abuses or is under the influence of alcohol or other substances or has physically or sexually abused or neglected the child. The supervision requirement can remain intact until the parent proves that he or she no longer abuses substances or is no longer a risk to the child. Visitation can be suspended pending negative drug or alcohol screens depending on the circumstances of your case.
Parenting Plans and Schedules
South Carolina law requires each parent to present his proposed custody and visitation plan to the Court for consideration at hearings involving these issues. These plans are detailed and set out what you would prefer for your normal visitation rotation, holidays and summer schedules. The Court may or may not consider your proposal for visitation in its ruling.
Our Approach to Child Custody Cases
Our focus in these highly contested cases is obtaining evidence to support our positions. Many people make false assertions to the court without evidence to support their claims. This can be highly detrimental to you in the long run and ruins your credibility with the court. While we are measured in our approach, we balance that with aggressive tactics designed to obtain supporting evidence to prove our theory of your case. Strategy is key and there is no such thing as a one size fits all approach to these type of cases.
Modifying Custody or Visitation Orders
Emergency Custody Situations
There are circumstances when the court’s emergency intervention is necessary to protect a child. This may include when a parent has physically or sexually assaulted your child, engaged in medical or other neglect, has kidnapped your child, or has significant mental health issues so that there is immediate threat to your child should the court not immediately intervene. In such instances, your case may be ripe for the court’s emergency intervention, meaning a hearing will be held within five days of your request.
In these cases, you are required to file a complaint, emergency motion and affidavit, together with any other supporting documents. The court must issue an order for an emergency action to take place.
During these hearings, the court will order an emergency custodian for the child and determine what, if any visitation to award, issue certain restraining orders, and other relief. Another temporary hearing may be held at a later date to re-address what was ordered.
The Court is typically not inclined to award emergency custody hearings or orders absent imminent threat to the child’s safety.
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My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.