When parents separate or divorce, the court determines child custody based on the best interest of the child. Whether the decision was made by agreement of the parents or by the court making the decision for them, it is enshrined in a court order that you must follow.
If you want to change the custody order, you must take action by filing a petition with the family court – usually, the court that issued the original custody order – and by proving a material change in circumstances.
In this article, we will discuss:
- Modification of SC child custody when the parents agree,
- Modification of SC child custody when the parents do not agree,
- Situations that are not a valid change in circumstances that would justify modifying SC child custody, and
- Examples of changes in circumstances that might justify a change in SC child custody.
Modification of Child Custody – Change in Circumstances
To modify South Carolina child custody, you must show that 1) there has been a material change in circumstances (the change in circumstances happened after the court’s original child custody determination), and 2) the change affects the child’s best interest.
When the Parents Agree
If the parents agree that a change in child custody is appropriate, they can jointly petition the court for the child custody modification. Assuming the parents can demonstrate to the court that the change in custody is in the child’s best interest, the court may then approve the child custody modification and sign a new custody order.
When the Parents Disagree
If the parents disagree – one parent is asking the court to modify the custody arrangement over the other parent’s objection, the parent seeking the change will need to petition the court and prove that there has been a material change in circumstances and that the change in custody is in the child’s best interest.
What is Nota Change in Circumstances
Before looking at situations where the court may approve a change in custody, let’s look at a few situations where the court most likely will not approve a child custody modification.
Relocation of either parent is generally not grounds for a child custody modification unless there are other factors that would affect the child’s best interest.
Even when the relocation is out of state, the court must consider the child’s best interest and the out-of-state relocation is not automatically a change in circumstances that will justify a modification (prior to 2004, there was a presumption against out of state relocations, but the SC Supreme Court abolished this presumption in Latimer v. Farmer).
Remarriage is also not a change in circumstances that would justify modifying child custody unless there are other concerns that would make the home unsafe for the child.
When Can You Modify Child Custody in SC?
There are many situations where a change in circumstances can justify a child custody modification, however. The list below is not exhaustive, but these are some of the more common situations that would justify a custody change.
Defacto Custody – When You Already Have Custody of the Child
When the custodial parent relinquishes the child to the non-custodial parent, and, despite the child custody order’s placement, the child lives with the non-custodial parent for months or years with no problems, the court may modify the child support order.
When the custodial parent petitions the court for the child’s return or the non-custodial parent petitions the court to allow the child to remain with them, there is a good chance the court will allow the child to remain with the parent they are currently living with if:
- The parent is fit,
- The child has been living with the parent for a substantial period of time, and
- The child is happy and healthy in their current home.
The Child is Having Problems that the Custodial Parent Cannot Control
When the child is having problems that the custodial parent cannot remedy – for example, health problems, issues with school, or conflict with the stepfamily, the court may agree to change custody if the petitioning parent can prove that:
- The problems are caused by the child’s environment or custodial parent,
- The custodial parent is unwilling or unable to help the child resolve the problems, and
- The petitioning parent is willing and able to help the child if custody is modified.
The Child’s Preference
The court must consider the child’s preference for custody, although it is not determinative in all cases.
The child’s preference becomes more important as the child grows older, and SC law says that the court should “place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.”
A younger child’s preference may not carry as much weight with the court, especially if it is based on one parent’s permissiveness, but an older teenager’s preference may be the most important factor the court considers.
Non-Custodial Parent’s Rehabilitation
One parent’s rehabilitation may be a change in circumstance that justifies a change in custody, especially if the child was placed with the custodial parent because the non-custodial parent was temporarily unfit.
A parent’s rehabilitation is not automatically a reason for the court to modify custody, however, and it is only one factor that the court will consider in deciding what is in the child’s best interest.
Other Changes in Circumstances that May Result in Modification of Child Custody
There are other situations that may justify modification of a child custody order, including:
- The custodial parent’s interference with the child’s relationship with the non-custodial parent,
- False allegations of child abuse made by the custodial parent against the non-custodial parent,
- Divorce or remarriage that results in instability for the child in the custodial parent’s home,
- Immoral conduct by the custodial parent like the exposure of the child to drug or alcohol abuse, overnight visits by romantic partners, or exposure to pornography or other age-inappropriate subject matter,
- Instability in the custodial parent’s home like excessive moving, job loss, or financial instability,
- Educational problems that the custodial parent cannot or will not resolve, excessive tardiness, or excessive absences from school, or
- Any change in circumstances, environment, or family dynamics that results in 1) the custodial parent’s home becoming less stable for the child or 2) the non-custodial parent’s home becoming more stable for the child.
Questions About Modification of Child Custody in SC?
If you want to ask the court for a child custody modification based on a material change in circumstances, the child custody attorneys at Templeton, Mims & Ward may be able to help.