In any custody determination, the Court looks at several factors to decide which parent should be awarded custody of the child. These factors can include:
1) whether one parent is unfit to serve as a custodian;
2) if one parent has served as the child’s primary caregiver;
3) if one parent has engaged in some sort of misconduct that would render him or her less suited to serve as a custodian;
4) if one parent is more suited to serve as custodian as a result of personal attributes or accomplishments, greater availability of resources, overall maturity, or parental attitudes;
5) if there are any experts who express a compelling opinion favoring one parent; and
6) what the child wants.
One of the factors a Charleston custody lawyer often must review with a client is whether a parent is unfit to serve as a custodian. It’s an important factor, because, generally speaking, an unfit parent isn’t going to be awarded custody of a child. One manner in which a parent may be deemed unfit is if he or she has engaged in a pattern of immoral conduct. Most commonly, this becomes an issue in a case when it is alleged that a parent has exposed a child to an adulterous relationship. Judges will often weigh this heavily against a parent if it can be proven (don’t do this, ever).
When it comes to alleging misconduct, please keep in mind that it is important to be able to prove that the misconduct or lack or morality of the parent must be connected to the welfare of the child before the Court considers it. The conduct must also be detrimental to the child before it takes significance in the custody analysis. The classic circumstance is that of a parent who is engaged in the “exotic dancing” industry; yes, our Courts are still conservative enough to frown on that sort of employment as possibly “immoral,” but as long as the parent isn’t taking the child to the club at night, it has no impact on the child and will not be considered. The exception to this general rule is if a parent’s immoral conduct rose to the level of flagrant promiscuity (flagrant promiscuity has been defined in at least one case as being five sexual relationships in one year).
If a parent has engaged in immoral conduct, but the conduct has ended and is not likely to happen again, the immoral conduct is less likely to be used by the judge in a custody decision. Temporary lapses in moral judgement have been overlooked in several cases, i.e., an isolated instance of adultery is far less likely to be weighed against a parent than would an ongoing string of adulterous relationships.
Immoral conduct is one of the types of conduct the Court will look at in determining whether a parent is unfit for custody, but it is not the only type of conduct. As seen above, it is also not simply a matter of whether the parent engaged in immoral conduct or not. The Court must make a full determination and decide whether the child is affected by this immoral conduct.
Langston v. Langston, 250 S.C. 363, 157 S.E.2d 858 (1967)
Boykin v. Boykin, 296 S.C. 100 (1988)
Shirley v. Shirley, 342 S.C. 324, 536 S.E. 2d 427 (Ct. App. 2000)
Dent v. Dent, 273 S.C. 387, 256 S.E.2d 743 (1979)