You may have found yourself in the middle of a divorce, fighting over the custody of the children.
You may have ended a relationship with someone you were not married to, but with whom you have a child in common.
Regardless of how you got here, now you are wondering what the options are for custody in South Carolina.
If you or a loved one has found themselves in the position of needing to make custody decisions about their children, you have most likely ended up confused, and not knowing what to do or what’s going to happen. When you start to research child custody, there are many different terms thrown around that may be confusing—legal custody, physical custody, joint, shared, sole custody, etc.
Next, let’s talk a little about the different kinds of custody and what they mean. There are several things you should know to help you understand what to do next.
The “Best Interest of the Child” Standard
The phrase “the best interest of the child” is one that you will hear over and over again in custody cases, and rightfully so. The best interest of the child will be the determining factor in practically everything concerning children in the legal system.
For our discussion today, know that it means that a judge will order what is in the best interest of your child when it comes to custody arrangements. The judge may consider what will harbor the best results for the child in terms of a child’s happiness, mental health, development (mentally, physically, and emotionally), safety and education.
Legal Custody vs. Physical Custody
Two major terms that you should know when discussing child custody are “legal custody” and “physical custody.” They are not the same thing.
Legal custody is decision-making power. It is the ability to make decisions about your child’s life. There are two kinds of legal custody—sole legal custody and joint legal custody. With sole legal custody, only one parent has the decision making power. Judges are reluctant to order this since a parent has a right to be involved in his or her child’s life. 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.
Joint legal custody is where both parents share the decision making power. The preference in South Carolina is for joint legal custody. Parents should keep each other informed and talk about major decisions affecting a child’s life, such as medical decisions, educational decisions, decisions regarding religious training, etc. If after a good-faith effort, the parents cannot make a decision, generally one parent will have final decision making authority.
Physical custody is different from legal custody. It simply means who the child is going to live with. There a three major 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. It does not necessarily mean that the other parent never gets to see their child. The judge may order supervised or unsupervised visitation.
Joint Physical Custody
Joint physical custody is where both parents get equal time with the child. Most of the time this means that they alternate weeks living with each parent. The courts in South Carolina have repeatedly warned against this custody arrangement since it doesn’t give a child a good sense of stability due to being moved around so much. It’s disruptive for the child.
Shared Physical Custody
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. Other terms that may describe the parents in this arrangement, or other arrangements, are “custodial parent” and “noncustodial parent.”
Basically this means that the child lives primarily with one parent and has one home, but has a set visitation schedule with the other parent and visits that parent at their home. The custodial parent is the primary physical custody holder; the noncustodial parent is the person with visitation.
Other Options for Custody
In addition to these custody arrangements, there are other options for custody as well. If the parents come to a decision together that they both agree to and the judge also agrees that it is in the best interest of the child, that plan can be followed.
Although rare, some parents come to an agreement that they should follow the “nesting” arrangement. This means that the children remain in one home and the parents alternate who lives in the home with them. This usually means that the parent who is currently not living in the house has another home they live at when it isn’t their time. In some cases, the parents share another home they each live at when it isn’t their time.
So, what to do next?
While there are several models for how custody generally looks and terms used to describe those models, there are various ways to structure custody and/or visitation. Different things work for different people and families. Finding the solution that works best for you and your family is the goal.