The terms of a child custody agreement are made by the court in a manner that they view to be in the best interest of the child. South Carolina law recognizes that the circumstances that dictated the original agreement may change, and so allows for modifications to custody orders under certain conditions. Custody orders may be modified by filing a petition to the family court. However, you will be required to demonstrate a substantial change in circumstances to secure a change to the original custody agreement.
Child custody issues are commonly the biggest sticking point in divorce proceedings for couples, and disagreements over them commonly continue even after the court has awarded custody to one parent vs the other. If you are aiming to get your current custody order modified you will need the help of an experienced family law attorney. Our dedicated legal team at Greenville Family Attorneys understands the difficulties and hurdles you will face in the process of winning a custody modification and can ensure you are prepared for them. Contact us today to schedule a free case consultation to begin building your case!
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Types of Custody
South Carolina law recognizes two distinct types of custody for minor children. Each type overlaps in certain areas, but grants distinctly different rights to parents. The custody order decided on by your family court judge will determine the type of custody each parent will have over their child or children.
This is what most people think of when they are fighting for the custody of a child. Having physical custody of your child means they will live in the same house as you, and a parent with sole physical custody or primary physical custody in case of joint parental custody agreements will be considered the custodial parent. As the primary caretaker parent, they hold legal responsibility for the everyday care of the child, including housing, healthcare, clothing, and food.
In most agreements, the parent who does not have primary physical custody of the child, considered the non-custodial parent, will have the responsibility of making child support payments to the custodial parent.
The second type of custody, called legal custody, grants fewer responsibilities to the parent. While not being directly responsible for the day-to-day care of the child, parents with legal custody are still permitted to make important decisions regarding the education, healthcare, religion, or extracurricular activities of their child.
These two types of custody are not necessarily granted individually, as parents may share both physical and legal custody of their children. The court may also grant sole custody (physical, legal, or both) to one parent if they deem the circumstances appropriate. When parents are granted joint custody in South Carolina they will each have an equal amount of input in how their child is raised. It is important to note, however, that joint custody does not guarantee equal parenting time. It is common for one parent to have physical custody of their child more than the other.
The majority of custody agreements will grant joint legal custody to parents. The exception to this is when the court decides that joint custody is not in the best interest of the child. In situations where parents have joint legal custody but cannot reach an agreement on an issue regarding the child’s upbringing, the custodial parent will have the final say.
When one parent is granted sole custody of the child the non-custodial parent is still permitted to take part in or be present for school activities except in cases where the court has specifically stated otherwise. They also maintain their rights to the educational or medical records of the child.
Who Decides Custody Orders?
The family court judge ultimately has the final say in custody decisions in South Carolina. They review the circumstances surrounding the separation to determine what type of custody agreement will be in the best interest of the child or children before finalizing the order. If the parents are able to work together to develop a parenting agreement they may submit this to the judge before the final judgment is rendered. In many cases, this agreement will be accepted unaltered or with only minor changes, but in cases where the parents are unable to reach an agreement or the proposed parenting agreement is not in accordance with South Carolina custody guidelines the judge may draft a custody order entirely independently. Once the order has been completed and approved by the court it becomes a binding order that must be followed by each parent.
When Can a Custody Order Be Changed?
Any situations can arise that would justify a modification of an existing custody order, but the one thing they all have in common is that a significant change in circumstances must have occurred since the original agreement. Common justifications for an order modification include:
De Facto Custody
This situation can arise when the custodial parent allows the child to live with the noncustodial parent for an extended period of time. So long as the court deems the parent fit to take over as the primary caregiver and they can determine that the child has a healthy, stable environment, they may grant a modification to the custody order to change the parents’ custodial status. This can be prompted by a petition from either parent.
The Custodial Parent Loses Control of the Child
If the custodial parent is unable or unwilling to deal with issues the child faces a petition to alter the custody agreement may be successful. These issues could be related to school, healthcare, or familial problems. The parent seeking a modification will have to demonstrate that the problems stem from the home environment or custodial parent, show a failure by the custodial parent to address the issues and that the non-custodial parent is capable of helping resolve them.
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How Do You Change a Custody Order?
A judge will typically require substantial evidence of circumstantial change in order to modify an existing custody arrangement. In most cases, they will look for an adverse change in the custodial parent’s situation rather than a positive gain in favor of the non-custodial parent. If you are pursuing a modification to your current custody order your chances of success are much greater if you can demonstrate any of the below:
- An Unstable Home Environment: The court’s primary responsibility when establishing a custody order is the well-being of the child and ensuring the situation is in their best interest. As a result, the court will show a strong preference for a stable home environment over a chaotic living situation. If you can demonstrate a lack of steady employment, an inability to provide food or clothing, or similar parental shortcomings from the custodial parent you will be far more likely to succeed with your petition.
- Educational Issues: If your child is performing poorly in an academic setting it is the responsibility of the custodial parent to assist them. If you are able to show that they are incapable of or unwilling to offer the necessary support to your child, whether the issue is absences from school or poor grades, you will have a strong argument for your case. Few judges will have much sympathy for a parent displaying a permissive attitude toward their child’s issues.
- Interference with the Non-Custodial Parent’s Relationship: Separations can be contentious times for couples and, unfortunately, this can sometimes lead to behavior that is downright vindictive. It is not unheard of for one parent to attempt to intentionally damage the relationship between their child or children and the other parent. Evidence of the custodial parent deliberately undermining the non-custodial parent’s relationship with the child can provide a reasonable basis to change the custody agreement. This could take the form of speaking poorly of the other parent while the child is around, intentionally intervening in visitation rights or other forms of communication between the parent and child, and other means of driving a wedge between the two. The custodial parent will typically be given a warning by the judge if this behavior is present, but the custody agreement may be changed if it continues.
- Immoral Behavior: This can take several forms, but at its core, it involves exposing the child to inappropriate behavior or content. This can include pornography, use of drugs, excessive use of alcohol, or other behaviors considered age-inappropriate. If you can show the court that your child has been exposed to these, it will strengthen your argument for revisiting the custody order.
- Bad Parenting: This may seem simultaneously vague and obvious, but if you have evidence that shows the custodial parent is not suited to the role you may be able to get the custody agreement altered. This can range from more serious issues, such as child abuse that will obviously result in the removal of the child from the care of the abusive parent or physical or mental health issues that prevent the custodial parent from properly raising the child, to lesser concerns, such as parenting behaviors that stunt the child’s independence or maturity or improper supervision of the child. This can be cut and dry in some cases, or far more nuanced in others. If you are able to demonstrate that the custodial parent is not fit to raise your child in one capacity or another you may be awarded a modification of your custody order.
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Do You Need a Lawyer to Change a Custody Order?
While it is not strictly necessary for you to have a lawyer in order to change your custody order, it is almost always in your best interest. Child custody controversies can continue even after the custody matter has been settled by a family court judge. As a result, petitions to change the existing custody agreement are common. If you intend to modify your child custody arrangement, you will most likely need the expertise and knowledge that a dedicated family lawyer can bring to the table.
Family law matters can be difficult due to their inherently personal nature. Modification of child custody agreements can be difficult to manage, but they are possible with the right evidence and guidance. Working with an experienced attorney will allow you to develop your custody modification litigation strategy in a way that is most likely to succeed. Working with the dedicated legal team at Greenville Family Attorneys will get you access to a wealth of legal experience that can benefit your case. We know what it takes to secure a custody modification in South Carolina and can help you move through the required steps as quickly as possible. Contact us today to schedule an initial case consultation to see what we can do for you!