One of the most important issues to resolve during a divorce is child custody. Determining custody is much simpler when both parties agree, but this does not always occur. When custody is contested, the court will have to weigh several factors related to the parents and child.
Types of Custody
In joint custody, both parents have equal rights and responsibilities when it comes to making major decisions related to the child. These major decisions include education, medical care, extracurricular activities, and religion. Though both parents share in making major decisions under a joint custody plan, the judge can designate that one of the parents has the authority over certain, specified issues. In contrast, sole custody means that one person has temporary or permanent custody of the child and all of the rights and responsibilities for making major decisions.
Under South Carolina law, at temporary hearings where custody is contested, both parties must develop and file a parenting plan with the court. If the parents desire, they can file a joint parenting plan, rather than filing separate plans. The parenting plan should address issues like parental preferences, the allocation of parenting time spent with each parent, and the major decisions listed above. The judge will determine custody after considering the filed parenting plans. However, a determination can still be made if no parenting plan is filed.
The court makes the custody determination based on the best interest of the child after considering all of the evidence presented. Some of the factors that go into determining the best interest of the child include, but are not limited to, the following:
1. Developmental needs of the child
2. Ability of the parents to meet the needs of the child
3. Preferences of the child
4. Preferences of the parents
5. Ability of each parent to remain involved in the life of the child
6. Whether either parent has committed domestic violence
South Carolina law provides for more clarity specifically in regards to two of the factors listed above. The weight of the preference of the child depends upon the child’s age, maturity, experience, judgment, and ability to communicate a preference. For example, the court will give more weight to the opinion of an older child who can more clearly express his or her preferences.
In relation to domestic violence, the court considers evidence of physical or sexual abuse and, where appropriate, which party was the primary aggressor. In determining the primary aggressor, the following factors are considered:
1. Previous complaints of violence
2. Relative severity of the injuries each person sustains
3. Each person’s future likelihood of suffering injury
4. Whether one of the people involved was acting in self-defense
5. Recollections of any household members regarding history of violence
If you anticipate that you may go through the divorce process, contact an experienced family law attorney today. At the Surasky Law Firm, LLC, we can provide help with all of the issues that come up during a divorce, including determining child custody.