English
EspañolSouth Carolina Custody
Custody
Basic information and definitions
How is paternity established in South Carolina?
According to South Carolina law, paternity can be established through:
- DNA testing - This test can be requested by the child, the child’s biological mother, the person who’s in charge of the child’s care, someone who believes he is the father, or by an authorized agency.1
- Voluntary acknowledgment of paternity - A paternity acknowledgment affidavit can be signed in front of a hospital notary once the baby is born or later at any regional Vital Records office or at the state Vital Records office of the South Carolina Department of Health and Environmental Control.2
Once paternity is established, the court will order that the birth certificate be updated to include the name of the father and will establish a child support order.3
1 S.C. Code § 63-17-10(C)
2 Voluntary Paternity Acknowledgment form
3 S.C. Code § 63-17-70
What types of supervised visitation can the judge order?
Based upon your request (motion) or based upon the judge’s own decision, the judge can prohibit or limit visitation if it’s necessary to ensure the safety of the child or the parent who is a victim of domestic violence.1 The judge can order any of the following types of supervised visitation:
- that the exchange of the child between the parents takes place in a protected setting;
- that visitation is supervised by an agency and the parent who is the “primary aggressor” pays the cost; or
- that visitation is supervised by another person. However, if it’s a household member, the judge must establish conditions to be followed during the visitation.2
1 S.C. Code § 63-15-50(D)
2 S.C. Code § 63-15-50(B), (C)
Who can get custody or visitation
Can a parent who committed violence get custody or visitation?
The judge must take into consideration any evidence of domestic violence, as defined in section 16-25-20 of the law or in section 16-25-65 of the law, when making a custody decision. The judge will consider physical or sexual abuse as well as which parent was the “primary aggressor.” In addition, the judge cannot deny custody to a victim of domestic violence based only on the fact that the victim left the home or relocated.1 However, there are other factors that the judge will consider when making a custody decision. Therefore, the fact that a parent committed domestic violence does not necessarily mean that s/he will be denied custody.
Visitation by the parent who committed violence may be allowed, but only if the judge believes that proper measures can be taken to ensure the safety of both you and your child. The judge can prohibit or limit visitation based on a motion of one of the parties or based on the judge’s own decision. Here are some things the judge could include in a visitation order:
- that the transfer of your child from one parent to another occur in a protected setting;
- supervised visitation by another person or agency with the costs paid by the abuser;
- that the abuser has to attend and complete an intervention program for offenders or other counseling as a condition of the visitation;
- that the abuser cannot drink or do drugs during the visitation and for twenty-four hours before the visitation;
- that overnight visitation is not allowed;
- that the abuser post a bond (money) for the return and safety of the child if s/he has made a threat to illegally keep the child; and
- require any other condition that is considered necessary to provide for the safety of the child, the victim of domestic violence, and any other household member.2
If visitation is not allowed or is limited to protect a child or parent who is a victim of domestic violence, the judge may order the address of the child and the victim to be kept confidential.3
Note: If a judge in the general sessions, magistrates, municipal, or family court determined that a parent committed domestic violence, that parent will be ordered to pay the cost of any medical or psychological treatment needed by the child if s/he was physically or psychologically injured as a result of the domestic violence.4
It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues. For information on how to find a lawyer, see our SC Finding a Lawyer page.
1 S.C. Code § 63-15-40
2 S.C. Code § 63-15-50(B), (C), (D)
3 S.C. Code § 63-15-50(E)
4 S.C. Code § 63-15-50(F)
If my child was conceived through rape, can the offender's rights be terminated?
If your child was conceived as the result of criminal sexual conduct and the offender was convicted, you can petition the family court to have the offender’s parental rights terminated. The family court can grant the termination if the judge believes that is in the child’s best interests. The offender’s rights may not be terminated, however, if:
- both parents were between ages 14 and 18 at the time of conception;
- the judge determines that the sexual conduct was consensual; and
- the criminal court judge states both of these things on the record.1
1 S.C. Code § 63-7-2570(11)
The custody process
How will a judge make a decision about custody?
The judge will make a custody decision based upon the best interests of the child, considering several factors such as:
- the circumstances of the parents;
- the nature of the case;
- the best spiritual and other interests of the child;1
- the religious faith of the parents and child;2
- the child’s preference for custody based upon the child’s age, experience, maturity, judgment and ability to express a preference;3 and
- any evidence of domestic violence as defined in section 16-25-20 of the law or in section 16-25-65 of the law, including physical or sexual abuse, and considering which parent was the “primary aggressor.”4
The judge cannot deny custody to a victim of domestic violence based only on the fact that the victim left the home or relocated.5
1 S.C. Code § 20-3-160
2 S.C. Code § 63-15-20
3 S.C. Code § 63-15-30
4 S.C. Code § 63-15-40(A)
5 S.C. Code § 63-15-40(B)
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.
Where can I find more information on custody in South Carolina?
We hope the following links to outside sources may be helpful.
- South Carolina Bar provides highlights some specific laws that relate to child custody and has information on child support and guardians ad litem.
- The South Carolina Judicial Branch has links to court forms, such as child support forms, and a frequently asked questions section about family law.
WomensLaw.org is unrelated to the above organizations and cannot vouch for the accuracy of their sites. We provide these links for your information only.
Steps to file for custody
Considerations before filing
Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.
However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.
Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.
You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.
In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.
Step 1: Prepare for the case
Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.
You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.
Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.
Step 2: File and serve the custody petition
The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.
The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.
| If you and the other parent are… | Then you can usually file for custody in… |
|---|---|
| married and getting divorced | the divorce case. |
| married but not divorcing | a separate custody petition. |
| not married | a separate custody petition, but legal fatherhood (paternity) may need to be established first or during the custody case. |
Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, talk to a lawyer.
The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our South Carolina Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.
Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for an order of protection and get temporary custody as part of a final order of protection.
After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.
Step 3: Preliminary court dates
The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:
- problems with service of process;
- referrals to mediation;
- temporary custody and visitation orders; and
- pretrial motions.
During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.
For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.
Step 4: Reach an agreement or go to trial
There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.
Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.
Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.
Step 5: Options if you disagree with the order
If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.
You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:
- The other parent gets sent to jail or charged with child abuse or neglect;
- The other parent is not following the custody and visitation order; or
- Your child’s needs change in a big way.
