The court must take into account the child’s reasonable choice for custody. The court will examine the preference of the child in view of his or her age, experience, maturity, judgment, and ability to articulate a desire. (See SC Code § 63-15-30)
When a court issues or modifies a custody order, it must consider the child’s best interests, which may include, but are not limited to: SC Code § 63-15-240
- 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;
- 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 other 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 considers necessary.
Under SC Code § 63-15-30, mothers do not automatically have an advantage in custody procedures, but a parent who has been the primary caregiver for the child is more likely to obtain custody, regardless of gender.
The court may award joint custody to both parents or sole custody to either parent. If custody is contested or if either parent requests joint custody, the court shall consider all custody possibilities, including, but not limited to, joint custody, and shall describe its custody finding and reasoning in its final order.
De Facto Custodian
According to the SC Code § 63-15-60, “de facto custodian” refers to a person who has been established by clear and persuasive evidence to have been the principal caring for and financial supporter of a child who:
- has resided with the person for a period of six months or more if the child is under three years of age; or
- has resided with the person for a period of one year or more if the child is three years of age or older.
A person is not a de facto custodian of a child until the court finds that the person fulfills the definition of de facto custodian with respect to that child. If a court finds that an individual is the de facto custodian of a child, that individual has standing to seek visitation or custody of that child.
If the child’s natural parents are unsuitable or other compelling circumstances exist, the family court may grant visitation or custody to the de facto custodian.