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An analysis of a custody/visitation case must start by recognizing the fact that every family is unique and every family has unique needs. Custody and visitation resolutions are nearly limitless, and can be tailored to a family's specific needs, provided parents are willing to work together in the best interests of their children. When they are not, options begin getting limited.
In general, custody may be "sole" custody to one parent or another, "joint" custody, or "shared" custody.
Sole custody is generally the result of one of two things: 1) the parents simply could not agree which of the parents would be the better custodian, and left the decision to a judge; or, 2) one parent recognizes that the other is a much preferred custodian, either by reason of some lack of fitness on his or her own part, some marital fault that renders that parent an inappropriate custodian, or, occasionally, some lack of interest in being a primary parent. The custodian retains the exclusive right to make final decisions regarding "major" decisions pertaining to the health, education, and upbringing of the child. The non-custodial parent in this scenario generally has what is commonly referred to as "standard visitation," which refers to every other weekend, with two additional overnights per month.
Joint custody is a common arrangement,particularly in scenarios where both parents are good and appropriate and wish to maintain a maximum of involvement in the child's life. There still must be a parent designated the "primary custodian" in a joint custody situation, and that primary parent generally retains the right to make final decisions that impact the child's best interests. But the "secondary custodian" is afforded more input into these decisions, and likely is on better footing to challenge in court decisions with which he or she vehemently disagrees. Joint custody provides for the greatest flexibility in visitation arrangements: parents sometimes simply agree to arrange for the sharing of time between themselves, perhaps with a fallback calendar should the arrangement sour; sometimes the alternating weekends are lengthened, or shorter but more frequent contact is arranged; a common arrangement is for the secondary parent to have greater time with the child in the summers or at other holidays; sometimes standard visitation is agreeable. In any event, there must be some degree of cooperation between the parents to make such an arrangement work.
Finally, true shared custody refers to the situation in which parents equally share the child, on "week-on, week-off" basis. Judges have been known to order shared custody, but it is disfavored and a judge will even consider it on rare occasions where the parents are demonstrably capable of working together to parent a child. Shared custodians are expected to go the extra mile in working together to reach decisions on behalf of their child; sometimes there will still be a primary decision-maker, but sometimes the parties will agree to resolve differences by mediation and/or arbitration. Ultimately, the expectation is that the parents will be able to resolve conflicts themselves. Shared custody is more common with pre-school age children and older children, as the demands of cooperating to raise a school-age child between two households can prove too difficult for even the most amicable of separated/divorced parents.
The single factor a court will use in making a custody determination is "the best interests of the child."
A comprehensive definition of "the best interests of the child" is simply impossible in this format. The concept is broad and it can (and does) encompass almost anything imaginable that could somehow impact a child's well-being.
In broad strokes, a court will analyze a custody case by answering the following questions:
a) Is one parent or the other "unfit" to serve as a custodian?
b) Has one parent served as the child's "primary caregiver"?
c) Has one parent or the other engaged in some sort of misconduct that would render him or her less suited to serve as custodian?
d) Is one parent or the other more suited to serve as custodian as a result of personal attributes or accomplishments, greater availability of resources, overall maturity, or parental attitudes?
e) Are there any experts who express a compelling opinion favoring one parent over the other?
f) What does the child want?
As you can probably see, there are a great many blanks to be filled in by an experienced custody attorney. Adding to the possible confusion is that a judge may weigh any of the factors in a manner in which he or she deems fit, making close custody cases notoriously difficult to predict. Every family is unique and has unique needs, and every custody case will rise and fall based on the unique circumstances present within that family dynamic.
In a case that goes to trial, the terms of visitation with a non-custodial parent are completely in the discretion of the trial judge. Again, the trial judge will be exclusively guided by what is in the "best interests" of the child.
Absent some special set of circumstances, this generally means that the non-custodial parent will get "standard visitation." This means every other weekend, from Friday evening until Sunday evening, perhaps with a Wednesday night overnight on weeks where the non-custodial parent doesn't have the child for the weekend. It means Christmas holidays are more or less split in half, and that Thanksgivings and Spring Breaks are alternated. There is additional time for the non-custodial parent in the summers, usually a total of about four weeks.
This arrangement is common in visitation cases simply because it is customary, and trial judges know that his or her decision regarding visitation is unlikely to be overturned on appeal. In practice, in closer cases, the court may grant some additional time to the non-custodial parent, above and beyond the standard model, meaning perhaps longer weekends, or more time in the summers. But ultimately, it often simply proves too difficult and too disruptive to the child's life to have him or her shuttled between parents' homes more frequently than standard visitation provides for.
If you are keen on finding a creative way of maximizing your time with your child, a courtroom probably is not the place for you. You should consult with an experienced custody attorney regarding alternative methods of resolving your visitation case.
South Carolina law has explicitly abolished a preference for the mother over the father in custody cases, regardless of the child's age.
In practice, however, fathers may still find that they are often fighting an uphill battle. Custody cases are often determined based upon which parent has heretofore served as the child's "primary caregiver," and in our society, that role is still almost always filled by the mother.
This is certainly not to say that fathers cannot get custody of their children. It happens every single day. It means, in a practical sense, that a father seeking custody of his child will need the assistance of an experienced custody attorney to an even greater degree than perhaps a mother would.
Yes and no.
A child's stated preference for one parent over another is considered, though on something of a sliding scale, depending both upon the child's age and maturity.
An older child's opinion will be given more weight than a younger child's opinion. The opinion of a child younger than about ten will generally not be considered at all.
A more mature child's opinion will be given more weight than a less mature child's opinion. Judges are quite adept at picking out kids who want to live with the more permissive parent or the parent who has promised him or her a new car, as opposed to the child with straight As who wants to live with the parent who resides in a better school district.
In sum, a very mature twelve year old's opinion will be given greater weight than that of an immature sixteen year old.
Any portion of a Family Court order pertaining to the custody, care, and support of a minor child can subsequently be changed upon a showing of a "substantial change in circumstances."
What qualifies as a substantial change in circumstances? Some are obvious: the custodial parent becomes drug-addicted, runs afoul of the law, or becomes involved in an abusive relationship.
The more difficult, and more common scenario, involves a change that is much more subtle. A common case in one in which the custodial parent wants to relocate out of state for a better job or to be closer to family. Perhaps the child's grades begin to suffer, and the non-custodial parent believes the custodial parent is to blame. Maybe the custodial parent has become belligerent toward the non-custodial parent, or has made it more difficult for the non-custodial parent to maintain a loving relationship with his or her child. The possibilities are nearly limitless.
There usually will be no stock answer as to whether your circumstances would warrant a change. The best advice is to immediately seek the counsel of an experienced custody lawyer.
The Family Court can enforce its orders by way of its contempt powers. What this means, in a practical sense, is that if you can prove to the court's satisfaction that the other parent has willfully violated an order, the court can sentence that parent to jail, can fine him or her, and/or require him or her to perform some amount of community service. In addition, the court will usually require the violating party to reimburse you for the attorney's fees you spent in enforcing the order. There usually won't be a second violation.
If you feel like you need to enforce an order, ask your custody attorney about the possibility of filing a Rule to Show Cause.
DeTreville Law & Mediation, LLC
306 Gamecock Ave.
Charleston, SC 29407
Email: [email protected]
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