Vitetta Law Group provides experienced, dedicated trial lawyers who will defend your interests in child custody litigation, child support cases, adoptions, and all other disputes involving custody in the Family Courts of Charleston, Berkeley and Dorchester counties.
We care about your children.
We care about you.
Our custody attorneys are experienced in all forms of Family Court Custody Litigation. Family Court is a unique blend of litigation involving the intimate details of family life balanced against an attempt to find a resolution that meets the future needs of the family. Our attorneys understand that Family Court is different, and have the experience to get you through the process effectively while being aware of the effect that litigation can have on your children. Families involved in custody litigation need experienced attorneys who will listen them them and be able to effectively and decisively promote their issues to the Family Court.
South Carolina Child Custody Law
Jurisdiction of the Family Courts:
In South Carolina, the Family Court has jurisdiction to make all orders regarding the custody and support of minor children. During a divorce or custody case (but not a subsequent action for modification of an initial custody determination), both parents are on equal footing in an initial custody determination. In making initial custody decisions “the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.” A child must live in South Carolina for 6 months prior to the commencement of a custody case in the Family Court, or if the child is less than 6 months old, have lived in South Carolina continuously since birth.
Best Interests of the Child:
In a custody dispute, the paramount and controlling factor is the welfare and best interests of the child. Although there is no rule of law requiring custody be awarded to the primary caretaker, there is an assumption that custody will be awarded to the primary caretaker. “In the present case, Wife saw to the children’s day-to-day needs, prepared their meals, took them to school, and saw that the children attended school related activities and religious functions”.
Joint and Sole Custody:
(1) “Joint custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.
(2) “Sole custody” means a person, including, but not limited to, a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.
“The relative fitness of parents is an important issue in custody litigation…. Fitness decisions normally turn on either of two considerations; whether either parent has been the primary caretaker, or whether either parent has engaged in conduct which would affect the welfare of the child.” Roy T. Stuckey, Marital Litigation in South Carolina 433 (3rd ed. 2001). Although there is no rule of law requiring custody be awarded to the primary caretaker, there is an assumption that custody will be awarded to the primary caretaker.
In South Carolina, in custody matters, the father and mother are in parity as to entitlement to the custody of a child. When analyzing the right to custody as between a father and mother, equanimity is mandated. In South Carolina, there is no preference given to the father or mother in regard to the custody of the child. The parents stand in perfect equipoise as the custody analysis begins.
Modification of a Prior Custody Order:
As in all matters of child custody, a change in custody analysis inevitably asks whether the transfer in custody is in the child’s best interests. In order for a court to grant a change in custody, there must be a showing of changed circumstances occurring subsequent to the entry of the divorce decree. A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the children would be served by the change. The change of circumstances relied on for a change of custody must be such as would substantially affect the interest and welfare of the child. Because the best interest of the child is the overriding concern in all child custody matters, when a non-custodial parent seeks a change in custody, the non-custodial parent must establish the following: (1) there has been a substantial change in circumstances affecting the welfare of the child and (2) a change in custody is in the overall best interests of the child.
A court may order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that: (1) the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and (2) the grandparent maintained a relationship similar to a parent-child relationship with the minor child; and (3) that awarding grandparent visitation would not interfere with the parent-child relationship; and: (a) the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or (b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest. The judge presiding over this matter may award attorney’s fees and costs to the prevailing party. ”Grandparent” means the natural or adoptive parent of any parent to a minor child; S.C. Code Ann. § 63-3-530
Parents and grandparents are not on an equal footing in a contest over visitation. The fact that a child may benefit from contact with the grandparent, or that the parent’s refusal is simply not reasonable in the court’s view, does not justify government interference in the parental decision not to allow visitation.
In order to demonstrate the existence of a psychological parent-child relationship, a person must show:
(1) that the biological or adoptive parent[s] consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; *597 (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; [and] (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
The South Carolina Supreme court found that “this test provides a good framework for determining whether a psychological parent-child relationship exists. These four factors ensure that a non-parent’s eligibility for psychological parent status will be strictly limited”.
Relocation out of South Carolina with a child:
The South Carolina Supreme Court has declined to hold that relocation in itself is a substantial change in circumstance affecting the welfare of a child. Relocation is one factor in considering a change in circumstances, but is not alone a sufficient change in circumstances. One location may not necessarily affect the best interests of the child as would another. The effect of relocation on the child’s best interest is highly fact specific. It should not be assumed that merely relocating and potentially burdening the non-custodial parent’s visitation rights always negatively affects the child’s best interests.
The Guardian ad Litem:
The Guardian in a custody case is the child’s advocate. A Guardian is not required in a custody case, but upon the request of either party, or order of the court, a Guardian will be appointed.
A Guardian will conduct an investigation and make a report to the court regarding the their findings. The Report of the Guardian is one piece of evidence that a court will consider in making a determination regarding the best interests of the children. The Report of the Guardian is not dispositive on the outcome of the case, and often times a Guardian will come under attack by an attorney who feels that the Guardians findings are adverse to the interests of their client. A Guardian is not permitted to make a recommendation regarding custody. Sometimes a court may ask for for the Guardian’s recommendation, in which case their opinion is permitted.
More likely than not, a Guardian will be an Attorney who practices family law and is well known in the legal community. At trial, a Guardian will be permitted to call witnesses, question witnesses of the parties, and will also be called as a witness themselves by either or both parties. During the Pre-Trial litigation phase a Guardian can file motions requesting a change in custody, they can request discovery and they can file petitions seeking to have a party held in contempt of a previous order of the family court. In other words, a Guardian has A LOT of power over your clients.
If you have a client involved in custody litigation and a Guardian is appointed, they should do whatever is necessary to cooperate with the Guardian and do nothing that could be considered to be in any way to be impeding their investigation.
Child Support is straight forward and controlled by the South Carolina Child Support Guidelines, attached. The Guidelines explain how child support in South Carolina is computed, the different kinds of parenting arrangements and how they may effect the guideline calculation, and what evidence is to be used to compute income.
Income for child support purposes is computed very similarly to the computation of income for taxes, with a few exceptions. Essentially, income from any source is used to calculate income. Furthermore, a person will not be permitted to voluntarily reduce their income in order to avoid paying child support, and a court will “impute” to a party income that it finds that party should be able to earn given their past earnings history, their education, training, experience or profession.
Virtually all child support litigation will involve either the computation of income or which worksheet to use in computing child support. If the non custodial parent has more than 109 overnights with the minor children, then they may benefit from using worksheet C, which will almost always substantially lower the amount of child support that they will pay.
Child support is sacrosanct and will always be ordered in a custody matter by the court. Also, the quickest way to jail is for non payment of child support. If child support is ordered, it must be paid absent an emergency situation.
Child support will run until a child is emancipated, turns 18, or graduates from High School, but in any case will end once the child turns 19 years of age. Child support can continue past the age of 19 if a child suffers from a disability that makes the child unable to care for him or herself.
Higher Education Costs:
The law in South Carolina has see-sawed back and forth in this area over the past several years. The bottom line is this: If a child gets accepted to college, will benefit from college and a parent has the ability to help pay (after all applicable scholarships have been obtained), they may be ordered to help pay for their child’s college education.