Filing for Child Custody in South Carolina

Opening a court case is the first step toward getting a court order for how you'll co-parent.

Some uncontested cases — where parents agree on everything from the start — are straightforward, and you might be able to complete paperwork without a lawyer. Though you and your co-parent may reach understandings informally, your agreements aren't legally valid until the judge issues a court order.

In contested cases, most people hire lawyers. Lawyers make sure the entire court process goes smoothly, from the initial filing to appearing at trial. You can keep negotiating throughout the case.

Your roles as plaintiff and defendant

All cases — whether you're married or not, arguing or not — have a plaintiff and a defendant. The plaintiff is the parent who opens the case. The defendant is the parent who responds.

You may have reasons to get the ball rolling — especially if your child's well-being is at risk. Or you may have reasons to wait. Regardless of who files the case, do your best to prepare for it.

Filing with your local court

If your child currently lives in South Carolina, your case likely belongs in a South Carolina court. A divorce or child custody case must be heard by a Family Court judge in one of the state's 16 judicial circuits.

Divorce

File in the county where the child lives. If you'd both prefer the case to be heard somewhere else, sign a consent to venue and request court permission.

For a no-fault divorce, you must live separately for one year before you file. (Optional: To ask the court to consider your financial situation immediately, file for separate maintenance and support at any time.) If you allege fault, the law doesn't make you wait before filing.

Deliver the required forms, called the pleadings, to the court. They'll keep the original, completed versions. Bring at least two copies of each, and ask the clerk to stamp them (called clocking):

• Family Court Coversheet
• Summons for Divorce
• Complaint for Divorce
• Verification (Have it notarized.)
• Certificate of Exemption (Use this if you've reached full agreement and you're asking not to be sent to mediation.)

See Requesting a hearing below for important information.

Custody and visitation (for unmarried parents)

An unmarried mother has sole legal and physical custody of her child.

The father can be recognized through a paternity acknowledgment (if both parents agree he's the father) or an administrative or court order for paternity (decided by the Department of Social Services or the judge). Just being named on the birth certificate isn't enough.

Once you're a legal father, the mother can ask you for child support, and you can seek visitation or custody.

To file for custody, consult a lawyer.

To file for visitation, file in the South Carolina county where the mother lives with the child. Deliver the forms below, called the pleadings, to the court. They'll keep the original, completed versions. Bring at least two additional copies of each, and ask the clerk to stamp them (called clocking):

• Family Court Coversheet
• Summons
• Complaint for Visitation
• Verification (Have it notarized.)
• Certificate of Exemption (Use this if you've reached full agreement and you're asking not to be sent to mediation.)

See Requesting a hearing below for important information.

Paying the filing fee

You'll pay $150 by cash, cashier's check or money order when you open your case. Upon receiving your pleadings and filing fee, the court clerk will assign a docket number to your case.

If you can't afford it, bring a notarized Motion and Affidavit to Proceed In Forma Pauperis and a self-addressed, stamped envelope. The court will let you know by mail whether they agree to waive the fee. If they deny your request, pay the fee by the stated deadline so your case can proceed.

Requesting a hearing

Plaintiffs often request their hearing when they first open their case. Otherwise, the defendant can do it. In a contested case, requesting the hearing can be an advantage because it allows you to speak a second time at the hearing to rebut the other parent's arguments.

You'll pay $25 to submit a hearing request form (no-fault divorce version or visitation version).

At this time, turn in any agreements you've reached. Agreements about your child should be written up as a parenting plan. (You may instead call it a custody, visitation and support agreement.) In a divorce, any other agreements you reach should go in a marital settlement agreement.

Uncontested cases

You'll receive a date for your final hearing, where the judge will likely turn your agreement into a court order.

Serve the other parent. (See Serving the other parent below.)

Contested cases

The court will send you a notice with the date of your temporary hearing, where the judge will issue orders to last the duration of your case.

Serve the other parent. (See Serving the other parent below.)

Serving the other parent

The plaintiff (or their lawyer) serves the defendant (or their lawyer) with copies of the forms mentioned above, along with any agreements you turned in (for uncontested cases) or the motion for temporary relief and notice of the temporary hearing (for contested cases).

For parents who handle the paperwork on their own, this can be one of the trickiest parts of the South Carolina court process.

Serve the other parent as soon as possible. You're required to do so at least five business days before your hearing.

There are multiple ways for the plaintiff to serve papers:

1. Hand the papers to the defendant at their home or workplace. This is called personal service. The defendant must sign the Acceptance of Service (either the divorce version or visitation version).
2. Pay the sheriff to serve the defendant. The sheriff's fee is nominal. They make a limited number of service attempts and won't search for a parent who's avoiding service. After they've served, they fill out an Affidavit of Service, have it notarized and give it to the plaintiff to file with the court.
3. Hire a server through a private company. They typically charge about $100. They'll try multiple addresses. If the defendant avoids service, they'll work with you to find them.
4. Mail the papers to the defendant. Use U.S. certified mail, return receipt requested, to prove that the defendant accepts the mail delivery or picks it up at the post office. When the plaintiff gets the receipt with the defendant's signature, they must write the docket number and the words summons and complaint on it. Then they attach it to a notarized Affidavit of Service by Mailing (no-fault divorce version or visitation version).
5. Publish the notice in the newspaper. When the defendant can't be found, the court usually requires the plaintiff to attend a hearing. They'll have to prove that multiple service attempts failed. Service by publication is a last resort and requires court permission.

The plaintiff files the proof of service (i.e., the acceptance or notarized affidavit) with the court.

Responding to the complaint (for defendants)

Once the complaint is served, the defendant has 30 days — or a few extra days if served by mail — to respond. However, in contested cases, a hearing may be scheduled as little as five business days away, and the defendant may need to file an answer before the hearing.

To respond, the defendant must fill out an Answer (no-fault divorce version or visitation version) in which they admit, deny or partially admit to the allegations.

The defendant should make copies and ask the clerk to stamp them (called clocking). The court keeps the original form. Then the defendant mails one copy to the plaintiff and keeps copies for themself.

They then complete an Affidavit of Service by Mailing (divorce version or visitation version) and have it notarized.

If the plaintiff hasn't already requested a hearing, the defendant can do this. (See Requesting a hearing above.)

Special circumstances

All divorce and child custody cases in Family Court address child support. If you already have legal or physical custody of your child, you can seek child support through the Department of Social Services without a court case.

You may need other forms for Family Court. For example, if you've experienced abuse or received threats, you can file a Petition for Order of Protection (no filing fee). The court will serve the defendant. You'll have to complete an affidavit and a short-form Financial Declaration, and you'll present evidence at a hearing where the defendant has a chance to respond.

If you're asking for a modification of a previous South Carolina court order, file in the same county as your previous case (even if neither of you lives there anymore). Briefly describe your "material and substantial change of circumstances."

Preparing for what comes next (contested cases)

If your case is contested, the next step in your case will be a temporary hearing, and you'll need a parenting plan.

Try to agree on a plan with the other parent. If you do, you might be able to skip the temporary hearing and go directly to your final hearing.

If agreement isn't possible, make your own plan to propose to the court.

Either way, you can use the Custody X Change parenting plan template. It suggests what to include while giving you the freedom to write custom provisions.

Turn to Custody X Change for a court-ready plan that supports your child and your custody request.