One of the questions that I get most is what are the different forms of child custody. I believe this is one of the more commonly misunderstood issues when going through a divorce with children,
In general, there are three different forms of custody: (1) sole custody, (2) joint custody, and (3) divided custody.
Sole custody is the most common form of custody in South Carolina. Despite recent changes in attitudes from social scientist, parents, and judges, sole custody remains the preferred form of custody in this state. In a sole custody arrangement, one parent is awarded legal and physical custody of the parties' child(ren) while the other parent receives defined period of time with the child(ren) known as "visitation".
S.C. Code § 63-15-210 defines "sole custody" as follows:
Sole custody means a person, including, but not limited to, a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child's education, medical and dental care, extracurricular activities, and religious training.
S.C. Code § 63-7-20(13) defines "legal custody" as follows:
Legal custody means the right to the physical custody, care, and control of a child; the right to determine where the child shall live; the right and duty to provide protection, food, clothing, shelter, ordinary medical care, education, supervision, and discipline for a child and in an emergency to authorize surgery or other extraordinary care. The court may in its oder place other rights and suites with the legal custodian. Unless otherwise provided by court order, the parent or guardian retains the right to make decisions of substantial legal significance affecting the child, including consent to a marriage, enlistment in the armed forces, and major nonemergency medical and surgical treatment, the obligation to provide financial support or other funds for the care of the child, and other residual rights or obligations as may be provided by order of the court.
S.C. Code § 63-7-20(17) defines "physical custody" as follows:
Physical custody means the lawful, actual possession and control of a child.
In 1996 the South Carolina General Assembly amended S.C. Code § 63-3-530, giving family court judges unequivocal authority to award joint or divided custody when it finds it is in the best interest of the child(ren) to do so. However, the South Carolina Supreme Court has consistently found that joint and/or divided custody is not in the best interest of children unless exceptional circumstances are found to exist.
This means that whenever a contested case goes in front of a family court judge for a determination of child custody, the preferred form remains an award of sole custody to one of the parents. Our court's have historically cited two main reasons for preferring sole custody. First, joint custody arrangement require a lot of cooperation between the parents who, by virtue of being involved in litigation, do not get along well enough to make such arrangements work well. Second, joint custody arrangements can be tough on children, especially the arrangements cause the child(ren) to be shuttled back and forth often between each parent's home.
S.C. Code § 63-15-210 defines "joint custody" as follows:
Joint custody means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.
Joint custody requires both parents to consult with each other regarding major issues affecting the child(ren), just as they would if they were still in a relationship with one another. Generally, when joint custody is awarded, despite the obligation to consult with the other party, one parent will be given the authority to make final decisions. If this were not the case, then parents would find themselves in family court every time they could not agree on what is best for their child. By giving one parent decision making authority, the court's are relieved of the burden of having to render a decision in every family dispute. It is important to note however, that decision making authority does not relieve that parent from the duty to consult with the other parent, and our courts have used one parent's refusal to consult as a basis for changing legal custody.
Although not the preferred form of custody, South Carolina family courts routinely award joint custody when requested by both parties or set forth in an agreement. In this way, the Court defers to parents to determine what is in the best interest of their child(ren).
Divided custody, also known as split custody is a variation of sole custody where the parties share multiple children and one parent is awarded sole custody of one or more of these children while the other parent is awarded sole custody of the remaining child(ren)
Divided custody is a very unfavored form of custody in South Carolina, but it does exist. It necessarily requires a separation of siblings which is considered detrimental to children. Absent exceptional circumstances, family court judges rarely award this form of custody. Our courts have held that "preserving sibling relationships is an important factor in deterring the best interests of children" and so any litigant seeking this form of custody must overcome this presumption. That said, our courts have found divided custody appropriate in certain situations including: