By Greenville Divorce Lawyer

John DeVore Compton, III

Since the tender years doctrine was abolished by the South Carolina legislature, meaning the mother does not automatically receive custody of young children, how does the family court decide which parent will get custody of the parties child(ren)?

The legislature spells that out in the Code of Laws too. In §63-15-240(B) the court lists the factors for the Judge to consider:

(B) In issuing or modifying a custody order, the court must consider the best interest of the child, which may include, but is not limited to:

(1) the temperament and developmental needs of the child;

(2) the capacity and the disposition of the parents to understand and meet the needs of the child;

(3) the preferences of each child;

(4) the wishes of the parents as to custody;

(5) 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;

(6) 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;

(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;

(8) any effort by one parent to disparage the other parent in front of the child;

(9) the ability of each parent to be actively involved in the life of the child;

(10) the child’s adjustment to his or her home, school, and community environments;

(11) the stability of the child’s existing and proposed residences;

(12) 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;

(13) the child’s cultural and spiritual background;

(14) whether the child or a sibling of the child has been abused or neglected;

(15) 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;

(16) 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

(17) other factors as the court considers necessary.

There are also other possibilities where a non-parent or step-parent could receive visitation rights or custody if that person is considered a psychological parent. We’ll examine that issue in another post.

It is fortunate, for the most part, parents are tending to agree on Joint Custody in various forms, thus, not pulling the children apart between two fighting parents. It is always best for divorcing spouses to put their children first. If not, the Court will make that decision for them – usually to the parties mutual dissatisfaction, and in a way less favorable to the emotional well being of the kids. It is better for parents to get along for the sake of their children, than to fight over them, generally speaking.

If parents can’t put their kids first, the bottom line is: the BEST INTERESTS OF THE CHILD OR CHILDREN, as the Court sees it, will control the best decision a Judge can make as to whom custody will be granted.

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