What is an unfit parent under SC law?
Although it is not necessary to prove that the other parent is unfit to win a custody battle, there are situations when the court must find a parent unfit, including:
- When a non-parent wants to take custody from a natural parent,
- When a non-parent wants to keep custody of a child over the natural parent’s objections, and
- When the court is asked to terminate parental rights.
Determining Custody: Unfit Parents
If you want custody of your child, you do not have to prove that the other parent is unfit. You do have to prove that it is in the child’s best interests for you to have custody.
The factors that the court will consider in determining what is in the child’s best interests can be found in SC Code Section 63-15-240, but these factors don’t necessarily indicate that a parent is unfit.
SC law does require proof that a parent is unfit when a non-parent (a grandparent, for example) wants to take custody of the child from a parent, when a non-parent wants to keep custody of a child over the parent’s objection, or when the court is asked to terminate parental rights (before an adoption, for example).
Unfit Parents: When a Non-Parent Can Take Custody from a Parent
Before a non-parent can take physical custody of a child from the parent, or when a non-parent wants to keep physical custody of a child over a parent’s objections, the non-parent must prove that the parent is unfit.
SC Code Section 63-15-60 states that the court “may grant visitation or custody of a child to the [non-parent] if it finds by clear and convincing evidence that the child’s natural parents are unfit or that other compelling circumstances exist.”
Parent has Physical Custody
When a parent has physical custody of their child and a non-parent wants to take custody from the parent, the non-parent must prove that the parent is unfit.
Whether the parent is fit is the only question for the court in this situation. For example, in Kay v. Rowland, the SC Supreme Court found that it was proper for the lower court to reject a grandparent’s request for custody of a child when the natural parent was deemed fit.
Similarly, in McDowell v. Richardson, the SC Supreme Court reversed a lower court’s decision to grant custody to a grandparent when the natural parent had not been deemed unfit. “Once the natural parent is deemed fit, the issue of custody is decided.”
Non-Parent has Physical Custody
If a non-parent (grandparent or other custodian) has physical custody of a child and the natural parent is seeking to re-claim custody, the analysis is a bit different. Whether the parent is unfit is only one of four factors the court must consider, including:
- Whether the parent is fit, “able to properly care for the child and provide a good home,”
- The amount of contact the parent had with the child while the child was in the non-parent’s custody, including visits and financial support,
- The circumstances of the parent’s relinquishment of custody to the non-parent, and
- The degree of attachment between the child and the non-parent.
There is a rebuttable presumption that it is in a child’s best interests to be in the care of a biological parent, but, based on the four factors listed above, the non-parent may be able to prove that it is in the child’s best interests to remain with the non-parent.
Termination of Parental Rights: What Factors Could Make a Parent Unfit?
What is an unfit parent?
For the court to deem a parent unfit requires serious circumstances. For example, the court can order the termination of parental rights when 1) the termination is in the child’s best interests and 2) the petitioner proves one or more of the following:
- The child or another child living in the same home has been subjected to abuse or neglect, and “it is not reasonably likely that the home can be made safe within twelve months,”
- The child has been removed from the home due to abuse or neglect, six months has passed since the adoption of a placement plan, and “the parent has not remedied the conditions which caused the removal,”
- The child has not lived with either parent for six months, and the parent has willfully failed to visit the child during that time,
- The child has not lived with either parent for six months, and the parent has willfully failed to financially support the child during that time,
- The presumptive legal father is not the child’s biological father, and it is in the child’s best interests to terminate the presumptive legal father’s parental rights,
- The parent has a diagnosable condition (like alcohol or drug addiction) that makes “the parent unlikely to provide minimally acceptable care of the child,” and that is not likely to change within a reasonable amount of time,
- The child has been abandoned by the parent,
- The parent committed domestic violence or assault and battery that resulted in the child’s death or admission to the hospital for in-patient care,
- A parent is convicted of the murder of the child’s other parent,
- The child was conceived as the result of a rape (criminal sexual conduct), or
- The parent of the child is convicted of the murder, voluntary manslaughter, or homicide by child abuse of another child of the parent.
Questions About When the Court Can Declare a Parent Unfit?
If you are a non-parent or grandparent seeking custody of a child, or if you are seeking to terminate a parent’s rights for an adoption, contact the child custody attorneys at Templeton, Mims & Ward at 843-285-5090 or by sending us an email through our website to set up a consultation and find out how we can help.
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