Almost all decisions made by the family court related to children must be guided by the “best interests of the child” standard – including child custody.
Custody disputes can be messy, painful, and are often the most emotionally charged parts of divorce proceedings. Whenever possible, the parents should come to an agreement on custody and visitation, but, if they cannot, a judge will decide for them.
How can a family court judge make such an impossible choice?
There are several South Carolina laws judges must consider when decided the best interests of a child in a custody dispute, including:
- The child’s religion,
- The child’s preference,
- Whether there is domestic violence, and
- A list of factors used to determine the best interests of the child.
Determining What is in a Child’s Best Interest
There are several factors a South Carolina court uses to determine what is in a child’s best interest in making custody decisions. Many of these factors are expressly stated in the South Carolina Code of Laws.
Statutory Considerations when Determining Child Custody
South Carolina law contains specific instructions for the family court regarding the “Tender Years Doctrine,” the child’s religion, the child’s preference for placement, and domestic violence allegations. In addition to these statutes, South Carolina law also contains a comprehensive list of factors the court must consider when deciding what is in the best interests of a child during a custody dispute.
No More Tender Years Doctrine
The “Tender Years Doctrine,” which presumed that custody of a young child under the age of four should be given to the mother, was abolished by SC Code Section 63-15-10. A child’s age, alone, should never be a consideration in determining whether the child’s mother or father is best equipped to provide and care for the child.
When a child is being placed with a non-parent, the child’s religious faith must be considered.
SC Code Section 63-15-20 requires the court to place a child with an individual, agency, or institution that is 1) governed by the same faith as the parents of the child 2) the same faith as the child if the parents do not share the same faith, or 3) the faith of either parent if the child’s religious faith is not ascertainable.
This statute does not require the court to consider the parent’s faith in a custody dispute, only when the child is being placed with an individual who is not a parent, an agency, or an institution.
When the parents have two different faiths, however, the child’s religious faith may be a factor that the court considers under SC Code Section 63-15-240(B)(17).
The Child’s Preference
Code Section 63-15-30 requires the court to consider the child’s reasonable preference for custody, based on the child’s:
- Judgment, and
- Ability to express their preference.
Although the child’s preference is always a factor the court must consider, the court should give greater weight to the child’s preference based on their age and maturity level – as a child becomes older, they will have more experience, maturity, judgment, and ability to express their preference.
Evidence of domestic violence must also be considered when the family court is making a custody determination.
A mere allegation of domestic violence is not enough to deny custody to a parent, but the court will consider evidence of domestic abuse whether or not there is a criminal conviction. SC Code Section 63-15-40 requires the court to consider evidence of:
- Physical or sexual abuse, and
- Which party was the primary aggressor in any domestic violence incident.
If one parent is absent from the home because they were a victim of domestic abuse, their absence from the home is not sufficient cause alone to deny custody to that parent.
The “Best Interests of the Child” Standard
What do the above factors all have in common?
Final custody determinations must be based on the best interests of the child – in addition to the laws described above, SC Code Section 63-15-240(B) contains a comprehensive list of factors that the court must consider when determining the best interests of a child in a custody dispute, including:
- The child’s temperament and developmental needs,
- Each parent’s ability to understand and meet the child’s needs,
- Each child’s preference,
- Each parent’s wishes,
- The child’s relationship with each parent, siblings, and other persons (like grandparents, aunts, and uncles) who will affect the child’s best interests,
- Each parent’s ability to encourage an appropriate parent-child relationship with the other parent,
- Manipulative or coercive behavior by either parent to involve the child in the parent’s dispute,
- Whether one parent disparages the other parent in front of the child,
- Each parent’s ability to be involved in the child’s life,
- The child’s ability to adjust to the home, school, or community of each parent,
- The stability of each parent’s home,
- The mental and physical health of the people involved with the child at each home,
- The cultural and spiritual background of the child,
- Any abuse or neglect of the child or a sibling,
- Evidence of domestic violence or child abuse,
- Whether a parent has moved more than 100 miles away from the child’s home in the past year, and
- Any other factors that the court finds are necessary to consider in determining the best interests of the child.
Questions About Child Custody and the Best Interests of the Child?
If you are considering separation or divorce, or if you need help with a custody dispute in South Carolina, call an experienced South Carolina child custody attorney now who can answer your questions and help to protect your rights during the process.
Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.
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