One of the first things a Judge wants to know at the beginning of any major hearing is whether the parties have any children and, if so, if custody or visitation is contested. This is because resolution of many of the other issues will, to some extent, be influenced by the children's needs. For example, possession of the marital residence may be awarded to the custodial parent because of the children's need for housing. In fact, a custodial spouse's ability to live where he or she wants may be limited to a particular geographical area in order for the non-custodial parent to be able to exercise visitation.
If there are children, the Judge is next going to want to know if the parents have ever been married to each other. This is because, in South Carolina, custody of a child born to parents who are not married to each other is presumed to go to the Mother, although this can be changed by a Court Order. If the parents are married, until a Family Court says otherwise each parent has full and equal authority to decide where those children go to school, who their friends will be, where the children will live, what religious faith they are to be raised in, whether they can get their ears pierced or whatever.
When a Court “awards” custody to one parent or another, what the Court is really doing is limiting the non-custodial parent's authority to make such decisions. When a Court awards “joint custody,” either by Court Order or, much more frequently, by approving a written agreement, the particular rights and privileges of the parents will be spelled out in more detail in that Order.
Custody is supposed to be determined on the basis of “the best interests of the children.” Exactly what factors are considered in determining the best interests of the children vary from case to case. Some of the more important ones are (1) who has been the primary caregiver; (2) whether the children have any special needs that are better handled by the parent with particular training or choice of careers that indicate that parent is more child-oriented (a nurse in the first example, or a school teacher or child psychologist in the second); (3) whether one parent has exhibited poor judgment regarding the children (such as introducing the child to a paramour while the parties are still married, or getting arrested for DUI when the children are in the car); and (4) whether one parent is more emotionally stable than the other.
Although rarely, if ever, actually said out loud, what a Court is really looking for in a custody case is (1) which parent can objectively see what the child's actual needs are and (2) whether that parent is willing to meet those needs, even if it means subordinating that parent's own ambitions.
The ultimate result varies from case to case. Gone are the days when a Court would just assume that a mother is the better parent. Most of the time, one parent will be chosen as the one to make the major decisions, and that parent is usually the one who will have the child the majority of the time. True sharing of the children on a 50/50 basis is exceptionally rare because, if the parents could actually get along with each other, they wouldn't be getting a divorce in the first place.
Taylor / Potterfield has a particular sensitivity to custody issues. We do not accept every case that comes in the door. We evaluate you as a potential client every bit as much as you evaluate us as your potential lawyers. This is because we take our obligation to protect children seriously, so seriously that we always reserve the right to decline representation when we believe it to be in the best interests of the children.