Possibly the most frightening aspect of a divorce is the issue of child custody. When parents decide to separate and ultimately divorce, who gets custody of the children? Do judges automatically give custody to the mother? What if the mother is an unfit parent? What if the father works a shift schedule? What if neither parent can care for the children adequately after a separation – can grandparents step in?
Custody decisions can be settled between the parties, mediated with the help of a professional mediator or decided by the court at a final hearing. Generally, when the parties reach a settlement, the court will not interfere with its terms, absent a clear violation of law, testimony that one of the parties was coerced or under duress at the time of making the agreement, or a finding that the settlement is not in the best interest of the children. The parties will be questioned regarding the terms of the settlement, as will the Guardian ad litem, if one was appointed in the case.
The trend in South Carolina has been away from sole custody, in which one parent, usually the mother, gets custody of the children and the other parent, usually the father, gets visitation on a standard schedule. The past few years have seen more awards of joint custody, with the parents sharing some combination of physical and legal custody of the child. One parent is designation the primary custodian with whom the child shall reside, and the other parent has “liberal visitation.” The non-custodial parent is sometimes denominated “the secondary custodian,” meaning, essentially, that should something happen to the primary custodian, the secondary custodian doesn’t have to go before the court to take custody of the children. The primary custodian generally had decision-making authority over the children’s health, education, religious, and extracurricular activities, although the parties can decide to share these responsibilities in any combination, dependent upon their ability to work together reasonably. Emergency decisions are generally made by the parent having physical custody of the child at the time of the emergency, so as to get the child care as quickly as possible.
This type of custody plan may be distinguished from split custody, which is sometimes used in multi-child families. In split custody, one parent takes custody of at least one child and the other has custody of the remaining children. This is sometimes seen in cases where the mother is awarded custody of the infant children and the father is awarded custody of the teenagers or where the mother gains custody of the daughters with the father gaining custody of the sons. Split custody is rarely the preferred custody, as the courts presume that children of a marriage should be raised together absent compelling evidence that split custody is in their best interests.
Sole custody is preferred in cases where the non-custodial parent is unfit or cannot be located, having deserted the family. Sole custody is a relic of a time when fathers were the sole breadwinners in the family and all mothers stayed home and cared for the children full-time. Sole custody was predicated upon the idea that children were not as bonded to their fathers as they were to their mothers. Of course, in today’s families many mothers work full-time, some fathers are the stay-at-home caregivers, and the range of “normal” for families is completely different than fifty or even thirty years ago. South Carolina courts recognize this in the changing preference toward joint custody.
- Among the considerations in custody awards are:
- The best interests of the child
- Which parent has been the primary caregiver
- Whether either parent has engaged in immoral conduct that has a direct negative effect on the children
- Evidence of domestic violence in the home, including evidence of which party is the aggressor
- Evidence of unfitness, including drug abuse or habitual drunkenness, suicide attempts, inability to care for oneself, and other behavior tending to put children at risk
- The education and parenting skills of the parents
- The health and ages of the parents
- Who is best able to foster a good relationship with the other parent
- The support system, including extended family, that surround the parents
- The opportunities for education, extracurricular opportunities and other benefits the child will have living with each parent
- The child’s wishes
- The parents’ wishes
Only a qualified and experienced attorney can adequately explain the law as it applies to a particular case. If you are considering divorce and concerned about child custody, ask for a consultation with a family law attorney.