Filing for joint custody in South Carolina requires more than submitting some paperwork. The first step in the process, for most, is to file a complaint with the appropriate court. A successful petition for joint custody may also require mediation and a hearing, and certainly an intelligent, dynamic strategy (which our team can provide).
You need to know which type of joint custody you are requesting, the criteria South Carolina courts seek before approving a joint custody request, and which filing path to apply in your unique circumstances. The team at Indigo Family Law works with South Carolina parents at every stage of this process, from initial filings to post-judgment modifications. We want to assist you, too.
This guide covers all three of these critically important concerns, including a step-by-step overview of the process of seeking joint custody. We also discuss how you might modify an existing custody order to grant joint custody. Use this practical overview of how to file for joint custody to your advantage, but also know that we are here to help with the actual process of seeking a favorable custody arrangement. To request a consultation, contact our law firm online.
Joint Legal Custody vs. Physical Custody vs. Shared Parenting Time in South Carolina
South Carolina law divides custody into two distinct components: legal custody and physical custody. Legal custody is primarily about making decisions about the child’s life, while physical custody is about where they live.
Mistaking or conflating the two types of custody is one of the most common mistakes parents make when entering a custody case. This mistake can lead to unrealistic expectations about parenting time.
What Joint Legal Custody Means
Joint legal Custody in South Carolina means both parents share the right and responsibility to make major decisions about their child’s upbringing.
The statutory definition of joint custody from S.C. Code Ann. § 63-15-210 is that “both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.”
The statute adds that, if a judge decides, one parent may “have sole authority to make specific, identified decisions.”
Joint legal custody works best when both parents are fit and capable of making sound, mutually acceptable decisions for the child. A degree of cooperation is typically necessary in these cases, so parents who are frequently battling one another can be a barrier to functional joint custody.
How Physical Custody Works When Parents Have Joint Legal Custody
Remember that physical custody determines where the child lives. Joint legal custody can be in place while one parent still has primary physical custody.
In such cases, the custodial parent may have the child most of the time, while the non-custodial parent has visitation rights (and typically sees the child less often than the custodial parent).
In other cases, the court can divide physical custody more equally, which is sometimes referred to as shared parenting time. This schedule is often regimented and recurring, which can help ensure each parent sees the child often and that the child has a semblance of consistency.
This is all to say, joint legal custody in South Carolina does not automatically mean equal “parenting” time.
For an even more detailed look at how physical custody arrangements work in practice, visit our page on child custody in South Carolina.
What South Carolina Judges Look for When Approving Joint Custody
South Carolina family courts seek to affirm the “best interests of the child” standard in custody-related decisions, as reflected in S.C. Code Ann. § 63-15-240.
When making decisions that may include granting joint custody (or not), the court typically weighs:
- The temperament and developmental needs of the child
- Each parent’s capacity to meet the child’s physical, psychological, speech, language, and medical needs
- The child’s adjustment to home, school, and community (and response when their routine is altered)
- The mental and physical health of all parties
- The parents’ relationship, including any prior domestic disputes
- The child’s preference, when they are old enough to express one
Joint custody is most likely to be awarded when both parents can communicate respectfully, live reasonably close to each other, and put the child’s needs ahead of personal conflict.
South Carolina’s Mandatory Parenting Plan Requirement: What to Include and Why It’s Important
South Carolina law requires a parenting plan in every custody case. Under S.C. Code Ann. § 63-15-220, a South Carolina joint custody parenting plan must be submitted to the court and approved before a custody order becomes final, and that plan must address:
- The regular schedule of time each parent will spend with the child, including holidays, school breaks, and vacations
- How major decisions will be made (and the process for resolving disagreements)
- Transportation arrangements for exchanges
- How parents will communicate with each other about the child’s welfare
- Procedures for modifying the plan if and when circumstances change
- How parents will handle requests for schedule changes
A parenting plan is a binding court order, not a recommended guideline. If parents cannot agree on a plan, the court drafts one.
For details on how visitation schedules are structured within a parenting plan, see our page on child visitation in South Carolina.
Three Ways to File for Joint Custody: In Case of Divorce, Unmarried Parents, and Necessary Modifications
How to file for joint custody depends on your relationship status and whether a custody order already exists.
The Joint Custody Filing Path for Divorcing Parents
Custody is typically resolved as part of the divorce action when parents are married.
In a contested divorce, both sides present evidence at a merits hearing, and the judge decides. In an uncontested divorce, spouses submit a written agreement, often called a Separation Agreement or Marital Settlement Agreement, that includes a parenting plan for the court’s approval.
The Path for Unmarried Parents
Unmarried parents must use a separate family court action to establish custody. When paternity has not been legally established, that step comes first, either through a voluntary acknowledgment of paternity or a court order.
The Filing Path for Parents with an Existing Custody Order
If a custody order is already in place and you want to change it to a joint arrangement, you file a motion to modify custody in South Carolina. That process is covered in detail in the modification section below. Our South Carolina child custody attorneys provide personalized guidance and valuable legal services to clients seeking better custody arrangements.
The SC Joint Custody Filing Process From Start to Final Order
Here is how the custody filing process typically unfolds in South Carolina family court:
1. Open Your Case by Filing for Joint Custody
File a Complaint for Custody with the family court clerk in the county where your child lives, including a request for joint legal custody and necessary details about the proposed arrangement.
2. Formally Notify the Other Parent of Your Custody Request
The other parent must be officially served with your complaint and a summons before the court can move forward.
3. Find Out Whether the Other Parent Will Contest Joint Custody
After being served, the other parent has 30 days to file a written Answer. They may agree to joint custody and your proposed schedule, propose different terms, or file a counterclaim seeking sole custody.
If they contest joint custody, they must show the court why it is not in the child’s best interest.
4. Protect Your Parenting Time While the Case Is Pending
Custody cases can take months to resolve. Either parent can request a temporary hearing to establish a court-ordered parenting time arrangement while the case moves forward.
5. Use Mediation to Build a Parenting Plan That Works for Your Family
South Carolina requires mediation before most contested custody cases go to trial. This is your opportunity to negotiate a detailed parenting plan directly with the other parent rather than leaving those decisions to a judge.
6. Finalize Your Joint Custody Order
If you reach an agreement, you will submit a consent order with your negotiated parenting plan attached for the judge to sign. If you cannot agree, your case proceeds to a merits hearing where the judge should determine which parenting arrangement is in the child’s best interest.
If it pertains to your case, our team can discuss with you the possibility of the court appointing a Guardian ad Litem (and what that would mean for you).
What Happens After You File: Temporary Orders, Guardian ad Litem Investigations, and Final Agreements in South Carolina
The period between filing and final resolution involves several distinct stages, each with its own requirements and timelines. These stages may include:
The Issuance of Temporary Orders
After a temporary hearing, the judge issues interim custody and visitation orders that govern the case until a final order is entered. These orders are temporary.
Guardian ad Litem Investigations
When a Guardian ad Litem is appointed, that person interviews informed parties (likely including both parents) and submits a written report with recommendations to the court. Judges give that report considerable weight, though the final decision is theirs alone.
Court-Approved Consent Agreements
When parents reach an agreement, they submit a written South Carolina joint custody parenting plan along with a proposed custody order for the judge to sign. Once the judge approves and signs the order, both parents are legally bound by it.
How to Modify an Existing Custody Order to Joint Custody
Parents who want to modify custody to joint Custody in South Carolina face a higher legal bar than those filing for custody for the first time. South Carolina courts do not change custody orders without a compelling reason (and the right conditions).
A petition to modify a custody arrangement to joint custody typically requires:
- A material change in circumstances affecting the child’s welfare, whether that is a substantial shift in a parent’s work schedule, a change in the child’s medical or educational needs, an instance of neglect, or another notable change
- The change serves the child’s best interests, which is a standard that applies in addition to the material change in circumstances
To start the process, we will file a motion to modify custody with the family court that issued the original order. The case then follows the same general path as an initial filing.
The parenting plan requirements that apply to modifications are set out in S.C. Code Ann. § 63-15-220, which specifies what every court-ordered parenting plan must include.
Frequently Asked Questions (FAQ) About Joint Custody in South Carolina
Is South Carolina a 50/50 custody state?
No. South Carolina does not have a legal presumption of equal parenting time. Judges apply the best interests of the child standard, which means each family’s circumstances (and the cases each party presents) dictate custody decisions.
Do parents have to go to court if they both agree on joint custody?
Yes, a court order is still required. A private agreement between parents, even a detailed written one, cannot be enforced through the family court system.
What should a joint custody parenting plan include to reduce future conflict?
The strongest South Carolina joint custody parenting plan resolves as many ambiguities as possible. A solid plan specifies the regular weekly schedule, how holidays and school breaks are divided year by year, exchange logistics, including who drives and where, the communication method parents will use, a process for requesting schedule changes, how major decisions are made, and a dispute-resolution mechanism.
Little, if anything, is left unaddressed.
Can joint custody work when parents live in different SC counties?
Joint legal Custody, which covers decision-making, works regardless of the distance between the decision-makers.
Joint physical custody, where the child splits time more evenly, gets more complicated when parents live in different counties, particularly once the child is school-aged. Courts factor in the distance between homes when setting a parenting schedule.
When geography makes equal time impractical, judges often award joint legal custody while naming one parent as the primary physical custodian and giving the other parent substantial scheduled time.
Contact Indigo Law Firm with Your Joint Custody Concerns
Indigo Family Law helps clients overcome new challenges as they arise, which is a common occurrence for those involved in South Carolina’s Family Court. Whether you are filing for the first time, working toward an agreement, or seeking to modify custody to joint custody in South Carolina, our team is here to guide you through every step. Contact our family lawyers today for a consultation.