Decisions about child custody are often the most stressful issues to be decided in a divorce. Regardless of your disagreements, each spouse should work to develop a parenting plan that puts your child’s needs first. The court that will consider your plans for child custody is bound by South Carolina law to make decisions that are based primarily on the child’s best interests.

The Fort Mill family law attorneys of McKinney, Tucker & Lemel, LLC, have decades of experience helping clients – and ultimately families – develop child custody plans as part of divorce settlements. As we do so, we protect our client’s rights and interests as a parent.

Below are answers to five common child custody questions that arise in York County divorce proceedings.

How does South Carolina handle child custody?

In a divorce in South Carolina, the estranged parents are expected to come to the court with a parenting plan in hand for the court to approve as part of the divorce settlement. This plan should spell out all aspects of raising the couple’s children, including how much time each parent will spend with the child and who will make decisions about how the children will be raised.

Each parent may play an equal role in the child’s life if he or she chooses and is able to do so. Assuming there are no aggravating factors, South Carolina law has no presumption favoring mothers over fathers or fathers over mothers in child custody cases.

If child custody is contested, the court will appoint a guardian ad litem, who serves as the child’s advocate. The guardian ad litem will investigate and make recommendations to the court about what is in the child’s best interests.

The family law judge who ultimately decides your child custody arrangements will have little or no knowledge of your case beyond what is presented in court. The opinion of the guardian ad litem may weigh heavily in the court’s decision.

If at all possible, it is best for you and your attorney to work with your estranged spouse and his or her legal team to negotiate a parenting agreement before going to court. Otherwise, someone from outside your family may decide your child’s immediate future.

How does the court determine the best interests of the child?

The “best interests of the child” is the presiding factor the York County Family Court will weigh in approving or modifying a child custody order in a divorce. Under SC Code § 63-15-240(B) (2019), the factors to be considered may include:

  • Each child’s temperament and developmental needs
  • Each parent’s abilities to meet the needs of the child and be actively involved in the child’s life
  • Each child’s preferences and adjustment to his or her home, school, and community environments
  • The parents’ custody plan
  • Past and current relationships of each child with each parent, siblings, grandparents, who may significantly affect the child’s best interests
  • How each parent has encouraged or discouraged the ongoing parent-child relationship between the child and the other parent
  • Whether the child or a sibling of the child has been abused or neglected or any domestic violence has occurred between the parents or between a parent and another individual
  • Other factors as the court considers necessary.

What are the types of custody agreements available to parents in South Carolina?

South Carolina family law generally recognizes two types of custody arrangements — sole and joint.

Sole custody means that one parent has the exclusive responsibility for making any major decisions that affect the child’s life. Joint custody means both parents share in the decision-making process.

If the parents have joint custody of the child, their parental authority may be further specified as to physical custody and legal custody of the child.

Physical custody refers to the day-to-day living arrangement of the child and addresses when the child is with each parent.

Legal custody refers to a parent’s right to make major decisions regarding their child’s health, education, religious upbringing, and general welfare.

Custody plans can become complex. In some cases, one parent may have sole physical custody while the other has sole legal custody. It’s also possible for one parent to have sole physical custody while sharing legal custody with the other parent. A court may give one parent the sole authority to make specific decisions and require the parents to make other decisions jointly.

Does a custody case always go to court?

A parenting plan must be approved by the family court as part of a final divorce settlement, so technically all child custody cases go to court. However, if you and your spouse can stand with your lawyers before a family law judge and state that you agree to custody arrangements as submitted, the judge will be more likely to approve the document.

Is mediation an option in custody cases?

Mediation is not only an option, it is likely to be required if you and your spouse cannot settle disagreements about child custody. In mediation, the estranged spouses meet with a neutral third party who works to help them resolve disagreements. Usually, each spouse’s divorce attorney attends mediation sessions to ensure their rights are protected.

Mediation should not be confused with arbitration, another type of alternative dispute resolution (ADR) that a couple may choose. In mediation, a trained mediator helps opposing parties come to a decision. In arbitration, a qualified arbitrator hears both sides’ cases and makes a decision. The opposing parties agree beforehand whether the arbitrator’s decision will be binding or nonbinding.

Mediation is mandatory in disputed divorces in South Carolina unless there are extenuating circumstances. A mediated settlement is not binding, but each spouse is required to participate in mediation and work in good faith to reach an agreement. Failure to cooperate would weigh against the uncooperative spouse in court.

Contact Our Fort Mill Child Custody Attorneys

If you are dealing with divorce and child custody or other family-related legal issues in Fort Mill or other surrounding areas of South Carolina, look to the experienced Fort Mill divorce attorneys of McKinney, Tucker & Lemel LLC for assistance. If you have questions about child custody as part of a divorce, contact our office today at (803)-336-7309 to schedule an initial consultation about devising a strategy that meets your goals.