The Family Court has exclusive jurisdiction to decide child custody and visitation disputes. However, the Family Court has no jurisdiction over the custody of a child who has reached 18 years of age as such children are considered to be adults and they can decide for themselves where they live, assuming the are not mentally disabled.
There is no presumption in the law that custody of children should be awarded to either the father or the mother. Absent an agreement or Court Order regarding child custody, both parents are equally entitled the custody of the children born during the marriage.
The Family Court will usually award one parent custody of the child and grant visitation rights to the other parent, if the parents of the child cannot agree on the terms of child custody. Typical visitation awarded by the Family Court is every other weekend from Friday afternoon to Sunday afternoon, alternation or division of the major holidays, birthdays and other special events in the child’s life, and provision for several weeks of extended time during the summer.
The controlling factor in any child custody dispute is the best interest of and welfare of the child. The Court must consider the totality of past and present circumstances and facts peculiar to each case and there from predict with which parent custody will bring about the better adjusted mature individual.
When the Family Court is asked to decide which parent will have custody, it will normally consider all factors that might relate to the fitness of a parent or the best interest of a child. Usually, one factor is not determinative of the outcome. Factors typically considered by the Family Court are who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties (including the Guardian ad Litem, expert witnesses, and the children); and the age, heath and sex of the children.
“Custody” typically refers to two specific components. First is the right to make decisions. The other is scheduling of the children between the homes of the parents.
“Sole Custody” describes the common form of custody. Where one parent has sole custody, that parent typically makes all of the decisions regarding the children and the children primarily reside with that parent, allowing the non-custodial parent visitation, typically on alternating weekends, a division of the major holidays, and extended time during the summer.
“Joint Custody” typically means that the parents share decision making authority and scheduling of the time the children spend in each of their homes. In some joint custody arrangements the parents make the decisions together after jointly conferring. When an impasse is reached in that type of arrangement, the ultimate decision making can be deferred to a mediator or the Family Court, or one parent is designated the “primary joint custodian” with the right to make the final decision. The scheduling in a joint custody arrangement can run the gamut of regular visitation (alternating weekends, division of the major holidays and extended during the summer), to more lengthy visits expanding the weekends and adding weekday visits, to week-to-week or month-to-month, or school year and summer schedules.
In some of the counties in South Carolina , parties are required to participate in mediation with a trained professional mediator if custody or visitation is contested. While the mediator has no authority to impose a custody or visitation arrangement, the mediator will attempt to facilitate an agreement between the parties. If an agreement is reached in mediation, it will be reduced to writing and entered by the Court as the Order after the parties are given the opportunity to review the written Agreement with their respective attorneys.