South Carolina recognizes three types of custody arrangements between parents: sole custody, joint custody, and shared custody.
Sole custody means that a parent is awarded full legal and physical custody of the child(ren). This means that as sole custodian, the parent can make all decisions for the children without having to include the other parent in the decision-making process.
Under sole custody, the noncustodial parent may receive every other weekend visitation, supervised visitation, or no visitation depending upon the circumstances.
Joint custody means that one parent is awarded primary legal and physical custody of the child(ren). The difference is that the custodial parent has a duty to consult with the noncustodial parent on all major decisions regarding the minor child(ren), including major medical, educational, and religious upbringing decisions. In the event there is a disagreement between parents about these major decisions, the primary parent can make the final decisions in this regard. The visitation schedule may range from every other weekend visitation to week-to-week visitation, however, there is one primary decision-maker no matter the physical custody arrangement.
Shared custody means that the parties make joint decisions regarding the child(ren) and there is no tie breaker. In the event there is a disagreement, the parties must mediate the issue or petition the Court to obtain a decision on the issue. Shared custody also references the fact that the parties have equal time with the children. This generally is a week-to-week visitation schedule or other arrangement where the parties share equal time during the year.
Shared custody is no longer favored in South Carolina except under “exceptional circumstances.” Our case law does not clearly define what this means, however, one example seems to be when parents have so much vitriol between each other and share that with the children. In this instance, the balancing act is to ensure that each parent has equal time with the children to avoid alienating behaviors by either parent.
Where parties have written agreements amongst themselves that honor a shared custody arrangement, the Court will usually approve these agreements. However, do not expect our courts to typically award shared custody based on recent case law.
Interestingly, joint custody is also not favored in this State. Our firm was involved in the underlying litigation and appeal in the Lewis v. Lewis case. In that case, Mother was the primary caregiver of the parties’ child and Father had anger issues. He refused to respect court orders and would bring the child late to school following his weekend visitation.
Our Court of Appeals has stated in its lengthy discussion that when parents quarrel and generally cannot co-parent, joint custody is not favored and instead, sole custody should be the starting point for all custody cases. South Carolina has also enacted a statute stating that joint custody is not favored. However, our courts generally do not uphold this tenet and will award joint legal custody anyway to ensure both parents are involved in decision-making for their children with one primary decision-maker.
