THE MCMILLIAN LAW FIRM - COMPASSIONATE AND AGGRESSIVE LEGAL REPRESENTATION FOR PARENTS OF THE LOW COUNTRY SEEKING TO PROTECT THE WELFARE OF THEIR CHILDREN
In my Family Law practice, one of the issues that I see most frequently is a parent who comes into the office and wants to know exactly what can be done to change a custody arrangement. This is usually the result of one parent's perceived short-comings of the other parent and how those shortcomings may be affecting the welfare of their child. The complexity in this issue comes from two specific places, one is that it involves the welfare of a child and often emotions are running high, and two the standards that a parent may apply that they feel should warrant a custody change may not exactly be in line with the legal standards to must be met to support a change in custody. The point of the article will be to walk through the legal standards and analysis that will be applied by a South Carolina Family Court to determine if a modification of custody is warranted in any specific situation.
STEP ONE: MUST SHOW SUBSTANTIALLY CHANGED CIRCUMSTANCES AFFECTING THE CHILD
South Carolina Family Courts always retain jurisdiction to modify or transfer custody of children in the event of changed circumstances or for other valid reasons. The underlying theme of course that drives any modification of custody is that any change must also be in the best interests of the child. Remember, as with all issues involving children in Family Court litigation, any change in circumstances that warrants a change in custody for a child simply means that sufficient facts have been presented to the Court that support the conclusion that the best interests of the child would be served by a modification in custody. See Skinner v. King, 272 S.C. 520 (1979).
In the case of Moss v. Moss, 274 S.C. 120 (1980), the South Carolina Supreme Court stated a Family Court should not transfer or modify custody unless the person seeking the modification can establish that:
- Circumstances have substantially changed;
- The changes have occurred after the initial award of custody and prior to the filing requesting the change in custody; and
- The changes have substantially affected the interests and welfare of the child in question
The Family Court will use this initial three step analysis in deciding whether to modify any previous custody order, whether it is a request to modify sole custody from one parent to another or whether the filing party is seeking to modify joint or shared custody.
STEP TWO: APPLY THE FACTORS USED TO DETERMINE INITIAL AWARDS OF CUSTODY
If the Family Court is satisfied that the three criteria stated above have been satisfied and that arguments for a modification should be heard, then the next step for the Court will be to hear and consider evidence and apply the factors relevant to child custody as if the issue of custody is before the court for the first time. In other words, if the filing party can show substantial changed circumstances, the the Family Court will apply the relevant factors to make a custody determination as if the issue is before the court for the first time. In essence, it is a do-over and a clean slate, all rolled into one.
The relevant factors to be considered by the Family Court in any determination of child custody can be found at S.C. Code Ann. Sec. 63-15-240 (B).The code sections states in relevant part as follows:
(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
One single factor is not more or less influential than any other, but the Court will be influenced by the pervasiveness or magnitude of how these factors are affecting the best interests of the child. These factors will be used and evidence presented to prove the presence of these factors, and from the sum of that evidence the Court will weigh that against the consideration of the best interests of the child. If the factors are shown to have been present through the evidence provided and are determined to be effecting the best interests of the child, then a modification of custody will be awarded.
REMEMBER - ITS ABOUT THE KID NOT THE ADULTS
The last piece I want to add here is a bit of commentary. Many times I have potential clients walk into my office and tell me they want to get modification of their custody order and what follows is one hour dissertation on how the other parent is making life difficult for the potential client. However, at the end of the consult, I am left still trying to piece together what part of the problem is affecting the welfare and interests of the child, and what part is just two adults who can't stand each other and are just playing games. This is common sense but it is the primary idea that must be recognized prior to any action seeking a modification of a custody order . . . Modification of a custody order must be about the child! It is the child's well-being, the child's ability to prosper, the child's ability to thrive that is paramount to this action. The conflict between the parents is of no concern in the most basic sense.
THE MCMILLIAN LAW FIRM - YOUR CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW ATTORNEY
Seeking modification of a child custody order is a very nuanced event in Family Law that someone should not attempt to navigate without legal counsel by their side. A lack of understanding of the underlying law and necessary evidence to support your case can have tremendous ramifications on the future of the child. If you need immediate relief from the Family Court or need answers from a Charleston and Summerville Family Law Attorney, please call us immediately!!
If you live in Charleston, Mt. Pleasant, Summerville, North Charleston, Moncks Corner, James Island, West Ashley, Folly Beach, Johns Island, Walterboro, or any of the other fine communities of the South Carolina Low Country, do not wait another moment. Act now!! Contact The McMillian Law Firm at 843-900-1306 or email us at [email protected] and scheduled your free Family Law consultation today.