Child Custody and Visitation
Child Custody Lawyer
No one asks to be in a situation where they must fight for custody of their children, but when that fight comes it means everything. In your heart, you're committed to winning child custody, but you need the legal knowledge and skill to make the best case you can. Whether the custody disagreement concerns a divorce, alimony, child support, child visitation, property division or parental rights, the process can appear to be insurmountable.
David Yokel is an experienced child custody lawyer who can educate you as to options available so that you can make well-informed decisions based on your needs and circumstances, and most importantly what is in the best interest of your child. Contact David Yokel for skilled, aggressive representation and a proven track record of results.
Child Custody & Child Visitation in South Carolina
The decision on custody of the children is one of the most difficult decisions that a South Carolina family court judge must make. The first thing a parent needs to understand is that the judge is primarily concerned with the best interest of the child, not the best interest of the parents. When determining the best interests of a child the South Carolina family court will consider several factors, including: who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties such as the guardian ad litem, expert witnesses, and the children; and the age, health, and sex of the children. The courts will also assess each parent's character, fitness, and attitude as they impact the child; consider the child's preference for custody; and weigh any domestic violence.
One of the most important factors in determining custody is which parent has been the primary caretaker of the child. This preference usually results in the mother being awarded primary physical custody of the child and the father given standard visitation. The common belief that mothers usually get custody is based on the mother often being the parent who stays home and takes care of the children however, the South Carolina courts will award a father custody in appropriate cases. When a child is born out of wedlock, South Carolina law presumes that the mother will have custody until and unless the family court orders otherwise.
Child visitation concerns the rights of the parent who doesn’t have custody to see their child, or, in a situation where temporary custody has been given to an otherwise non-custodial parent and/or relative. The biological parent of a minor child can request visitation as part of a divorce, or custody case, or can file a petition for visitation. In addition, a family court may grant visitation rights to a grandparent if you or the other parent have passed away, divorced, separated, or it’s in the best interest of your child.
Unmarried Parents Rights in South Carolina
A man is presumed to be the father of any child born as a result of his marriage to his wife, but when two parents are unmarried no paternity is assumed. Parents have two main options when it comes to establishing paternity in the state of South Carolina. They can voluntarily establish paternity, or it can be established involuntarily.
When the mother and father agree that the male is indeed the child’s biological father, they can use a voluntary process to establish paternity. In situations where one parent does not want to acknowledge paternity, the father has the option to seek paternity through a DNA or genetic test.
Unless the court orders otherwise, the custody of a child born out of wedlock goes to the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or declared by a judge, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.
Different Types of Custody Arrangements in South Carolina
One of the first things to consider for your agreement is what type of custody arrangement you want to have with the other parent. Here are some common custody options:
- Joint legal and joint physical custody: In this custody arrangement both parents have rights and responsibilities to make decisions for the child and they both spend significant amounts of parenting time with the child.
- Joint legal and sole physical custody: This is when the child lives with one parent and visits the other parent, but both parents have the right and responsibility to make important decisions for the child.
- Sole legal and joint physical custody: One parent is given the authority to decide all important matters concerning the child, but the child spends time living with both parents.
- Sole legal and sole physical custody: One parent makes the decisions about the child and the child also lives with that parent and has visitation to the other parent.
Physical Custody vs. Legal Custody
There are two different types of custody – physical custody and legal custody. Physical custody refers to the actual possession and care of the child, while legal custody refers to the right and responsibility to make decisions regarding the child’s upbringing. Physical custody refers to where the children live on a regular basis. It can be shared by both parents or granted to just one. Having legal custody of your children means that you are responsible for making decisions about the important things in their lives, like where they go to school, what religious instruction they receive, whether they need academic tutoring or psychological counseling, and when they go to the doctor.
Joint Custody VS. Sole Custody
In deciding child custody, the court can grant sole or joint physical and legal custody, and the two do not have to match. The court could grant joint legal custody and sole physical custody, or vice versa. Joint custody means both parents share equal rights and responsibilities for major decisions concerning the child while sole custody means one parent has the right and responsibilities. South Carolina does not consider joint custody arrangements to necessarily be in a child’s best interest. Joint custody could initially be presumed harmful to a child when it comes to divorced parents if they remain bitterly divided and unable to cooperate. If parents want joint custody, they must demonstrate to the court why joint custody will be in a child’s best interest.
Sole physical custody with no parenting time for the other parent is extremely rare and is only likely if the non-custodial parent is deemed unfit or poses a real danger to the children. It’s more likely that one parent would be awarded sole custody while the other parent is awarded visitation rights. If custody is granted solely or primarily to one parent, the court is still likely to grant visitation to the noncustodial parent, unless to do so would be harmful or dangerous to the child. The amount of visitation that the other parent is awarded can vary widely. A primary issue in determining the amount of the other parent’s visitation is the physical distance between the parent and the child, as well as the nature of the relationship between the parent and the child. The parent with sole physical custody is referred to as the custodial parent and the other is the non-custodial parent who has visitation rights.
Creating a Child Custody Parenting Plan
A parenting plan is a plan parents come up with outside of litigation to govern child custody issues and other co-parenting issues that may arise after separation and divorce. If parents can agree on a parenting plan, they prevent the possibility that the court will decide regarding child custody, including who gets primary legal and physical custody and visitation schedules, that may be unsatisfactory to both.
If you and the other parent can decide for yourselves to create a joint custody agreement or sole custody agreement you need to work out the details of how it will work. A parenting plan is a court form that parents of minor children can use to identify their position on things such as who has physical and legal custody, whether one parent pays child support, who carries health insurance on the child. You also need to come up with a detailed custody and visitation schedule that shows the parenting time during the week, on weekends, during holidays, on vacations, on school breaks, etc.
Guardian Ad Litem Representation
In the Family Court of South Carolina, a Guardian ad Litem (often referred to simply as the “Guardian” or GAL) is someone appointed by a Judge to represent the interests of minor children in contested child custody and visitation cases. The Guardian ad litem essentially functions as a lawyer for the child and advocates for his or her best interest.
The Guardians primary duty is to investigate and issue a report to the Court with their findings. During a typical investigation, the Guardian will interview the parents and the children, conduct criminal background checks, review medical records, and request drug tests. After the investigation is complete, a formal written report is distributed to the Court and to all parties involved. The opinion of the Guardian can be quite influential. A Judge may know very little about a case until it comes before him or her, so they rely heavily on the Guardian’s familiarly with the situation when making their decisions. Often, the parties involved can select a Guardian ad Litem. However, if the parties cannot agree on someone, the Judge will appoint a qualified person.
Understanding De Facto Custodians
De facto custody is method to assign legal custody and physical custody of a child to someone based on the time a child has been in the care of another person and the age of the child. A “de facto custodian” is a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who (1) has resided with the person for a period of six months or more if the child is under three years of age; or (2) has resided with the person for a period of one year or more if the child is three years of age or older.
Consideration of Domestic Violence
Courts take allegations of domestic violence in child custody cases very seriously. There is always the concern that if the court does not take strong action, the accused parent could wind up later harming the child. For this reason, courts do tend to be conservative when it comes to granting custody or visitation following accusations of abuse. Domestic violence in all forms is considered detrimental to a child, so if either parent has a history of violence - even if it is against a partner and not the child - South Carolina law allows a judge to deny him or her custody.
It’s important to note that the courts do not simply take a parent's word for it when considering accusations of domestic violence and child custody. If you are still living with your spouse or partner, keep careful records of every incident of physical or emotional abuse that involves you or your kids. Write down the date, time, and place of every event, along with a description of what happened and any injuries to you or your children. These records will be a great help to you if you must go before a judge to ensure that you and your kids are protected from the abuser.
Final Custody Determination and Considerations
The overriding factor in determining custody is typically based on who has been the primary caretaker for the child in the past and how much responsibility the other parent has taken for the child’s care. Unless there are reasons to deviate greatly from this status quo, the court is unlikely to do so. Where the parents were living in one household until recently, the family court will still attempt to determine how care for the child was divided and accomplish a similar division post separation. If the parents are on amicable terms, they may agree to custody terms in a parenting agreement between themselves, or via a mediator. If child custody is disputed, however, they will have to receive a child custody order from a South Carolina judge, who will attempt to make a custody decision that is in the "best interests of the child". If one parent has the kids most of the time, that parent is usually granted sole physical custody, while the other parent gets the right to regularly schedule time with the kids, called either “visitation” or “parenting time.”
Representing You Through Challenging Child Custody Issues
Child custody and visitation issues involve some of the most difficult decisions following divorce or break up with a co-parent.
David Yokel is an experienced Greenville child custody attorney who can educate you as to options available so that you can make well-informed decisions based on your needs and circumstances, and most importantly what is in the best interest of your child. Contact David Yokel for skilled, aggressive representation and a proven track record of results.
Creating a custody and/or visitation agreement or parenting plan is always difficult but with the guidance and direction of a knowledgeable family law attorney who is familiar with South Carolina child custody laws and who understands the sensitive situation, you can feel confident making major decisions that will affect your child's life forever. With the help of an experienced lawyer, parents may be able to reach a custody agreement outside of court.
For contested custody and visitation issues, the court appoints a guardian ad litem to protect the interests of the child. As a child matures, the courts may consider the preference of the child.
The goal in child custody and visitation matters is to create as happy, loving and caring an environment as possible for the child, in fairness to both the noncustodial and custodial parent.
Contact David Yokel Your Greenville, South Carolina, Child Custody Attorney
If you are going through a child custody case in the Greenville, South Carolina, area, call David Yokel for help. You can reach his office by calling 864-240-2066 or by emailing him to schedule a consultation.