South Carolina’s New Child Custody Law: Parenting Plans Start Next Month

South Carolina has a new child custody law:  H 4614[1] was officially signed into law by Governor Haley on June 18, 2012, after a few amendments and very little dissent.[2]  The new law does quite a few things, as evidenced by its official title alone constituting 299 words.  Among other things, H4614 defines joint and sole custody, creates a new requirement for submission of parenting plans, requires judicial consideration of joint custody in some cases, organizes scattered statutes and case law into a uniform listing of factors to be considered when the court determines custody, expands parental rights, and creates a Family Court Study Committee.  Most of H4614 went into effect when signed into law, but the section governing parenting plans will not be effective until next month.  So far, the law has drawn criticism for “overburden[ing] family court judges during initial hearings,” “increas[ing] the cost of a divorce proceeding,” discouraging advance settlements to custody disputes, clouding the definition of the best interest standard that is “clearly defined” in “court rulings on the issue,” and forcing people who are in conflict and may struggle with communication into a situation of sharing custody, which places any child in a tough position.[3]  And with that, let’s dive right in.

S.C. Code Ann. § 63-15-210 defines joint and sole custody.  Sole custody, typically favored in South Carolina case law, is defined as a situation where a parent or other person “has temporary or permanent custody of a child and . . . the rights and responsibilities for major decisions concerning the child, including . . . education, medical and dental care, extracurricular activities, and religious training.”  S.C. Code Ann. § 63-15-210(2).  Joint custody “means both parents have equal rights and responsibilities for major decisions concerning the child,” but a judge could pick “one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.”  S.C. Code Ann. § 63-15-210(1) (emphasis added).  Though custody determinations are left to the particular judge hearing the case, South Carolina judges have rarely awarded joint custody.  H4614 aims to increase joint custody[4] by requiring the family court to “consider all custody options, including, but not limited to, joint custody” in contested custody cases or if either parent requests joint custody.  S.C. Code Ann. § 63-15-230(C) (emphasis added).  In the court’s final order, a determination of custody must be accompanied by the court’s reasoning for the decision.  S.C. Code Ann. § 63-15-230(C).  Final custody determinations are still governed by “the best interest of the child” standard and the court can “award joint custody to both parents or sole custody to either parent,” but regardless of the custody determination, the family court can “allocate parenting time in the best interest of the child.”  S.C. Code Ann. § 63-15-230(A),(B),(D).

Where “an order for custody affect[s] the rights and responsibilities of the parents, the order can include (1) “approval of a parenting plan,” (2) an award of sole custody or joint custody, and (3) “other custody arrangements as the court may determine to be in the best interest of the child.”  S.C. Code Ann. § 63-15-240(A)(1)-(4).  If sole custody is awarded, the noncustodial parent will be allowed “appropriate parenting time.”  S.C. Code Ann. § 63-15-240(A)(2).  If joint custody is awarded, the order must include “residential arrangements with each parent in accordance with the needs of each child; and how consultations and communications between parents will take place, generally and specifically, with regard to major decisions concerning the child’s health, medical and dental care, education, extracurricular activities, and religious training.”  S.C. Code Ann. § 63-15-240(A)(3)(a),(b).  Obviously, much of this would be discussed in the parenting plan(s) submitted to the court.  Finally, the court’s “best interest of the child” factors (or those things the family court “must consider” when “issuing or modifying a custody order”) are easily organized into S.C. Code Ann. § 63-15-240(B)(1)-(17):

(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.

Previously, these factors were found in scattered statutes and case law.

The law further encourages parental involvement (and brings us into this century) by expanding the parental rights given in S.C. Code Ann. § 63-5-30 to also include “telephonic and electronic communication” between a minor child and either parent, “except in cases of abuse, neglect, or abandonment.”  S.C. Code Ann. § 63-15-250(A),(B).  In cases of sole custody, the custodial parent has a duty to “facilitate opportunities for reasonable telephonic and electronic communication between the child and the noncustodial parent” as ordered by the court.  S.C. Code Ann. § 63-15-250(A).  For joint custody situations, both parents “should facilitate” these communications between the child and other parent in compliance with their court order.  S.C. Code Ann. § 63-15-250(B).  Additionally, unless prohibited by court order or State law, in any custody situation, each parent has equal rights when it comes to accessing a child’s educational and medical records, and participating in school and extracurricular activities “held in public locations.”  S.C. Code Ann. § 63-15-260.

One big change to be aware of is found in S.C. Code Ann. § 63-15-220, which governs submissions of newly instated parenting plans.  A parenting plan “reflects parental preferences, the allocation of parenting time to be spent with each parent, and major decisions, including, but not limited to, the child’s education, medical and dental care, extracurricular activities and religious training.”  S.C. Code Ann. § 63-15-220(A).  Beginning August 17, 2012, parenting plans must be submitted by each parent (or the parents/parties can choose to “submit a joint parenting plan”) “[a]t all temporary hearings where custody is contested.”  “[U]pdated parenting plan[s]” may be submitted “[a]t the final hearing.”  S.C. Code Ann. § 63-15-220(B).  The court will consider these plans before issuing a temporary or final custody order, but if a parent/party fails to submit a parenting plan, the court is not precluded from issuing an order.  S.C. Code Ann. § 63-15-220(A).  Theoretically, parenting plans should encourage both parents to realistically think about the practicalities of their proposed custody arrangement(s) and plan accordingly.  Most lawyers understand that regardless, these parenting plans will, in all likelihood, slightly increase the cost of divorce proceedings when children are involved.  Here’s hoping we can convey that this extra cost is for the sake of the children.

Finally, H4614 created the “South Carolina Family Court Study Committee” to look into “the feasibility of tracking the outcome of contested temporary and final custody proceedings in the family court.”  Findings should be issued by January 31, 2013.  Additionally, keep on the lookout for further updates regarding parenting plans:  Rules and forms are still to come from the South Carolina Supreme Court.  S.C. Code Ann. § 63-15-220(C).  Until then, don’t forget to consult with an attorney about how parenting plans and H4614 could affect your case!


[1] For now, the enacted bill can be found at http://www.scstatehouse.gov/sess119_2011-2012/bills/4614.htm.

[2]Rick Brundrett, Senator Stalls Child Custody Bill, The Nerve (May 17, 2012, 5:55 AM), http://thenerve.org/news/2012/05/17/Custody-bill/ (reporting that “Sen. Phil Leventis, D-Sumter, placed his name on the legislation indicating that he ‘desires to be present’ if the bill is debated on the Senate floor—a powerful procedural move that effectively delays, if not kills, consideration of a proposal”); Rick Brundrett, General Assembly Approves Family Court Bills, The Nerve (June 7, 2012, 5:55 AM) , http://thenerve.org/news/2012/06/07/custody-bills/ (reporting that “Leventis, who didn’t publicly state a reason at the time for blocking the bill, later removed his objection”).

[3] Rick Brundrett, S.C. House Bill Proposes Major Child Custody Law Changes, The Nerve (Feb. 6, 2012, 6:00 AM), http://thenerve.org/news/2012/02/06/bill-custody/; Robert Kittle, SC Senators Consider Bill to Increase Joint Custody After Divorces, WSPA (Mar. 1, 2012, 6:36 PM), http://www2.wspa.com/news/2012/mar/01/4/sc-senators-consider-bill-increase-joint-custody-a-ar-3332038/.

[4] Kittle, supra note 3.

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3 responses to “South Carolina’s New Child Custody Law: Parenting Plans Start Next Month

  1. Pingback: An Introduction to the PKPA and the UCCJEA |

  2. Pingback: Parenting Plan Forms Are Here |

  3. Pingback: New Revised Proposed Parenting Plan Form Released |

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