Father's Custody Rights in South Carolina

By Brenna Davis

The fathers' rights movement is a response to perceived gender biases in the family court system. For many years, the presumption in child custody cases in most states was in favor of the mother, and fathers frequently had to fight for years to get equal time with their children. In 1981, South Carolina passed its Uniform Child Custody Act and the legislature has continued to make changes to child custody laws since that time. The law now accommodates the increasing number of fathers who are involved caretakers for their children. While individual judges may still have some biases in favor of traditional families, South Carolina law does not favor one parent over the other, and fathers and mothers have equal rights to their children.

Child's Best Interests

All states now use the "child's best interests" standard in determining custody and visitation arrangements. Judges frequently consider the previous behavior of each parent, financial, emotional and physical stability of the parents, child's relationship to her parents, and the home environment each parent can provide for the child. There is also a strong presumption in favor of maintaining the status quo, so judges frequently try to discern who is the primary caregiver. If both parents provide equal care, the judge may award some variety of joint custody.

Tender Years Doctrine

The tender years doctrine was a 20th century construction stating that babies and very young children should be with their mothers. This doctrine still subtly influences the law in some states, limiting the time fathers can have with babies and prohibiting young children from having overnight visitation with their fathers. South Carolina abolished this doctrine and now favors awarding primary custody to the primary caretaker of babies. Frequently, noncustodial parents are awarded visitation schedules that allow them to see their babies more often but for shorter periods of time. When the child gets older, these parents typically shift to more traditional visitation schedules.

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Support and Alimony

Child support is money paid to one parent to provide financial and material support to their children. In South Carolina, child support awards are based on a combination of the parents' income and the children's needs. For example, a child who has an expensive medical condition might require a large amount of child support. Alimony is awarded directly to one parent. Typically, this award is based on lost income when a parent took time out of her career to become the child's primary caretaker. Alimony is most commonly awarded to mothers, but can be awarded to fathers as well. As a general rule, the parent who makes more money is more likely to end up paying child support. Alimony awards are decreasingly common in South Carolina.

Paternity

The only situation in which a father may not have equal rights to his child is when he is not married to the child's mother. Fathers may not seek visitation or custody in South Carolina until their paternity has been established. This can occur in three ways. Both parents can sign the child's birth certificate after she is born; the father and mother can sign a voluntary acknowledgment of paternity or the father can take a paternity test and petition the court to acknowledge him as the child's legal father.

Other Considerations

While judges are allowed to take into account the child's wishes in making a custody determination, these wishes are not controlling. Unlike many states, there is no age at which a child can determine with which parent she wishes to live. South Carolina strongly encourages parents to work out custody disputes and offers several programs, including court-ordered mediation and the pilot Visitation Involvement Parenting program. If parents still cannot come to an agreement, a judge may appoint a guardian ad litem to investigate the facts of the case and make a recommendation.

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References

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