Even when a parent believes that divorce or separation is necessary, the children are always a primary concern since separation of the family unit generally affects children the most. It is important to have legal counsel who understands the impact of separation on your children and will assist you mitigating this emotional time.
How does the court decide who gets custody?
In South Carolina, neither the mother nor the father has an advantage in getting custody of their children based solely on gender. Rather, the court will determine what is in the child’s best interest. There are numerous factors the court considers when determining the best interest of the child, which are:
- The temperament and developmental needs of the child;
- The capacity and the disposition of the parents to understand and meet the needs of the child;
- The preferences of each child (although there is no set age when a child gets to decide with which parent he or she will live, the court may consider the child‘s wishes based on the child’s judgment, maturity, age, and experience);
- The wishes of the parents as to custody;
- The past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
- The actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
- The manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
- Any effort by one parent to disparage the other parent in front of the child;
- The ability of each parent to be actively involved in the life of the child;
- The child’s adjustment to his or her home, school, and community environments;
- The stability of the child’s existing and proposed residences;
- The mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or another party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
- The child’s cultural and spiritual background;
- Whether the child or a sibling of the child has been abused or neglected;
- Whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
- Whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year unless the parent relocated for safety reasons; and
- Other factors as the court consider necessary.
Many times, the court finds both parents are equally competent and capable, and it is a “close call” for the court when selecting a primary parent or custodian. In addition, the court may order sole custody, joint custody, or shared custody.
Other child-related considerations:
It is important for parents to shield the children from the divorce/separation process as much as possible. Unless it is an abusive situation, the adults are divorcing, not the children. Courts seriously consider the behavior of parents towards each other and the children when deciding custody. A child custody lawyer at McCutchen McLean, LLC will ensure each client understands what the court expects and how to proceed in the most advantageous way for their children.
Child support will be awarded to the custodial parent in most circumstances. Child Support is controlled by the South Carolina Child Support guidelines. This is a set formula that requires certain information such as gross income, health insurance premiums for the children, daycare costs, and other factors. Generally, the parent who does not have primary physical custody of the child will be required to pay monthly child support to the other parent based on the guidelines. Our courts are authorized to deviate from the guidelines in certain circumstances.
Parenting Plans: Each parent will present the court with a parenting plan outlining their proposed visitation schedule for the non-custodial parent. Factors to consider are the other parent’s work schedule, extended family traditions, summer vacations, and holidays.
Guardian ad Litem: In South Carolina, a family court judge may appoint a Guardian ad Litem (GAL) for the children in a contested custody case. The role of the guardian is defined by statute. Generally, the GAL will investigate the homes of each parent, talk to witnesses, and talk to the children when age-appropriate. The guardian will submit a written report and advocate for the child. The parties are required to pay for the GAL’s services.
Separate Maintenance And Support
What if I don’t have legal grounds for divorce but believe it is time to separate from my spouse? If you are in danger, or have children, or have a property that needs to be protected or divided, or if you need support from your spouse, then an action for Separate Maintenance and Support may be appropriate. The colloquial term for Separate Maintenance and Support is a legal separation. In this type of family court lawsuit, the court has the authority to decide all issues as if it were a divorce action, except for the divorce itself.
However, before you file suit, you must already be separated from your spouse. For many people, timing is crucial. Therefore, it is extremely important to have your documents ready to file as soon as legally possible to protect yourself, your children, and your property. A Lexington SC Family Law Attorney at McCutchen McLean, LLC are extremely proficient in preparing the lawsuit and filing it at the precise time to best protect our clients and allow them to get in the courtroom as soon as possible.
What happens if the divorce decree needs to be changed regarding my child’s custody, visitation, or child support? Court Orders concerning children’s issues and sometimes alimony issues may be changed under certain conditions. To modify a court order, South Carolina law requires that you prove a substantial and material change in circumstance has occurred since that order. However, not all changes are material or substantial. The attorneys at McCutchen McLean, LLC have filed numerous successful Modification lawsuits. Call us today for your initial consultation.
Should You Hire a Child Custody Attorney?
The attorneys at McCutchen McLean, LLC have years of experience in assisting their clients with advancing their custodial position as to the best interest of the child. They will prepare the client to advocate for the child to the court and assist the client in communicating with the Guardian ad Litem to promote their custodial positions.