South Carolina Child Custody: Laws, Factors & More

In South Carolina, custody of a minor child is determined as part of divorce or a case between unmarried parents.

You'll need a detailed parenting plan covering how you'll cooperate to raise your child. If you and the other parent can't agree on one, you may submit separate proposals to the judge, who may accept one of your proposals or instead create a different plan for you. When you agree on what you want, you won't need a trial.

Either way, your parenting plan becomes part of an enforceable court order that defines both legal and physical custody, the child's residence and who will pay what amount of child support.

Who may seek custody

To file your case, there's a residency requirement. Seeking custody and visitation is generally for legal parents only — although nonparents may do so in limited circumstances.

Residency requirement

You can file for divorce in South Carolina if:

• Both of you have lived in South Carolina for at least three months, or
• One of you has lived in South Carolina for at least a year

If you're not married to the other parent, you can file for child custody in South Carolina if:

• Both of you live in South Carolina, or
• The child has lived in South Carolina for at least six months, or
• The child has suffered abuse or neglect (The court may waive the residency requirement.)

Parents

A legal parent can seek custody or visitation and may be ordered to pay child support.

Other relatives

When nonparent relatives discuss their legal right to be in the child's life, they're often thinking of one of these situations:

• A de facto custodian has lived with and taken care of the child for a while: at least six months for a baby, or at least one year for a child over three. They may seek custody.
• A psychological parent has long-term responsibility; they live with the child, provide for them financially, and — importantly — emotionally bond with them. They may seek custody.
• A guardian may be appointed when a parent is unable to care for the child. Parents may suggest a guardian (e.g., in a parenting plan or will), or a court can choose them. Guardianship is similar to custody but granted through a separate process.
• A grandparent may seek visitation rights if the parent hasn't let them see the child for over 90 days, but the court needs a reason to override the parent's wishes. A grandparent who is raising the child may seek custody.

Only a court can give someone custody of a child — whether temporarily or permanently — and only a court can change the custody order.

Types of custody

Legal custody

If parents agree to joint legal custody — meaning they'll share responsibility for major decisions about their child — the court is likely to award it.

Some parents find it difficult to cooperate on big decisions about their child. One common solution is joint legal custody that empowers one parent to serve as the final decision-maker to end disagreements.

However, if parents can't agree even to attempt meaningful discussions about decision-making, the court is likely to order sole legal custody to one parent.

Physical custody

A parent with sole legal custody commonly gets sole physical custody too. This arrangement is more briefly called sole custody. There may be no set schedule for the noncustodial parent to visit. If the judge orders only reasonable visitation (the right to see the child), parents have to schedule as they go.

When parents share joint legal custody, it's still common for one parent to have a majority of the parenting time. This arrangement is likely to be abbreviated as joint custody despite the unequal time. In most cases, a visitation schedule is ordered, and the terms primary and secondary are often used to describe who has more or less time.

When an argument about physical custody continues to trial, the judge usually gives primary physical custody to one parent.

Judges may order near-equal time if both parents want it and the facts support it. The term true joint custody, aka shared custody, describes situations in which each parent has at least 30 percent of the overnights. This designation may lower child support payments. You probably won't hear the term shared custody except in reference to child support.

Factors in the court's decision

The court looks at 17 factors of the best interests of the child, as described in the South Carolina Children's Code.

If you don't reach an agreement on custody, the judge will seriously consider the views of the guardian ad litem in your case (details below).

Your parenting history matters. For example, if one of you moves over 100 miles away from your child's primary residence (except for safety reasons), the judge may count it against you.

Split custody (splitting up siblings), also called divided custody, is rare, especially when parents don't agree to it. It's usually believed to be contrary to the children's best interests. The judge would need a reason to impose it.

Guardians ad litem

If you're arguing over custody, expect a guardian ad litem (GAL) to be assigned to your child. They investigate the child's best interests.

Throughout South Carolina, they're almost always brought in for contested cases, as well as for uncontested cases that involve paternity establishment, name changes or stepparent adoptions.

Even if the court doesn't require a GAL, you can request that the court appoint one, and you can suggest an individual.

Most GALs are lawyers. If your case is simple, choosing a nonlawyer may save you money. But if your case is complicated, you may end up needing a lawyer GAL who can perform specialized tasks.

The GAL investigates the situation, conducts a home visit, speaks to both parents and the child, interviews anyone whose opinion may be relevant, delivers a preliminary report to the parents, speaks to the mediator and writes a final report for the court. They also attend all hearings where they may testify, be cross-examined and call witnesses. Nothing you tell them is confidential.

Since the GAL can report the child's opinion to the judge, the judge rarely needs to interview the child directly (and would only interview a mature teenager).

The GAL can't explicitly make a custody recommendation, but the judge usually gives weight to their observations. The GAL can explicitly recommend a parenting time arrangement.

Separation and common-law divorce

South Carolina doesn't recognize legal separation as a marital status. Divorce is the only way to end a marriage.

However, if you're married and you plan to live separately without divorcing, either spouse can seek an Order of Separate Maintenance and Support. This order can address finances (including child support and alimony), who lives in which house and who takes care of your child. One of you could go on to initiate a divorce.

If you and your child's other parent acted like spouses (by living together, sharing money or property, etc.) before 2019, South Carolina may recognize you as having a common-law marriage. You can divorce to end this type of marriage. Later evidence won't be considered because South Carolina passed a law to stop recognizing common-law marriages.

How long a case takes

Several weeks after opening your case, if you don't have an agreement, you'll have a temporary hearing. The judge will issue temporary orders you must follow for the duration of your case.

Eventually, you'll have a final hearing at which the judge will either approve an agreement (if you've settled) or else preside over your trial (if you're still arguing). The result will be a final order.

How long it takes to get to the final hearing depends on whether you're divorcing, whether you and your co-parent agree, how complicated your case is and how busy the court is. If you haven't at least requested a final hearing 365 days into the court process, the court can dismiss your case.

If you're divorcing

If you're divorcing, the timing of your case depends on your grounds for the divorce.

If you cite one of four grounds — adultery, abandonment, physical cruelty or habitual drunkenness — you can pursue a divorce with fault at any time. (Note: Emotional cruelty isn't on the list.) However, fault divorces can't finalize until at least 90 days after you file.

The fifth ground — the most common one — is that you are already separated. This is considered a no-fault divorce. You must live apart for one year before filing for no-fault divorce. Upon filing, there's no further waiting period to get your divorce decree, apart from the time it takes to complete all legal steps in your case.

If you're not divorcing

In the fastest scenario, you could have a final custody order weeks after opening a case. Normally, the court wants to wrap up each case within a year. However, it's not unheard of for complex custody cases to take more than a year.

Laws and legal help

Consult the state Code of Laws, especially Title 20 - Domestic Relations and Title 63 - South Carolina Children's Code. The Court Rules ("family" tab) specify legal procedures. An experienced family lawyer will know what laws and rules are relevant to your case.

To find a lawyer, use the South Carolina Bar's Lawyer Referral Service. The lawyer they recommend can give you a brief, affordable consultation.

People who meet income guidelines may be eligible for free help from South Carolina Legal Services. This organization can initiate a divorce if you or your child is at risk. They can't pursue child support for you.

If your child is disabled, consult the South Carolina Department of Disabilities and Special Needs or Protection and Advocacy for People with Disabilities.

Our professional sources

Bannister, Wyatt & Stalvey LLC
Luke Burke
Greenville, SC

Belle Legal LLC
Annabelle Robertson
West Columbia, SC

The Bruton Law Firm
Amanda Bruton
Rock Hill, SC

Chillico & Associates LLC
Shannon Byrdic Anderson
Mount Pleasant, SC

Law Office of Rhett Burney
Rhett Burney
Simpsonville, SC

The Law Office of Beth Sibley PLLC
Beth Sibley
Myrtle Beach, SC

Wayne Patterson, Attorney at Law
Wayne Patterson
Greenville, SC

The Stevens Law Group, LLC
Jenny R. Stevens
Spartanburg, SC

Viva Law Firm
Lauren Acquaviva
Charleston, SC