From the property division to pets and more, navigating separation can prove challenging even in the most amicable scenarios. An amicable solution is always preferred for couples seeking separation or divorce, but the outcome is a must when a child is involved.
The circumstances surrounding child custody orders may be more complicated for nontraditional families than for “traditional couples.”
Defining the Modern Family
To many, the traditional family is comprised of two parents of the opposite sex who have children. In reality, the family of today is characterized by diversity.
Modern family models include same-sex couples with adopted children, single mother and father households, unmarried parents living together and more.
Because of this variety, the court may approach nontraditional families with nontraditional custody orders.
Custody As Defined by South Carolina Law
According to South Carolina law, child custody is divided into two categories: physical and legal custody.
Physical custody rulings determine the child’s main place of residence. Guardians with whom the child resides for a majority of their time hold primary custody, while those the child stays with on occasion (weekend, holidays, etc.) have secondary custody.
Legal custody reserves custodians the right to make decisions for the child regarding medical, educational and religious matters. Legal custody is typically sole custody. However, in extraordinary circumstances, joint legal custody may be ordered.
Navigating Custody in a Nontraditional Family.
Hearings in the past often awarded custody to the child’s primary caregiver – typically the biological mother.
However, Cook v. Cobb, 271 S.C. 136, 245 S.E.2d 612 opened up opportunities for “non-parents” to be awarded custody. This case designated the welfare of the child and the child’s best interest as the primary, paramount and controlling consideration for the court.
Under South Carolina law, non-parents have two paths toward custody. One method requires the court to qualify the non-parent as a “de facto custodian” for the child, meaning they have acted as the child’s primary caregiver and financial provider. Evidence must be presented that proves the natural parent is unfit to hold custody.
Non-parents may also seek custody or visitation rights by invoking the “psychological parent doctrine.” Petitioners must prove:
- They have assumed parental obligations without financial compensation
- Acted in a parental role long enough to form a bonded relationship with the child
- The petitioner and child have lived in the same household together
- The child’s parent facilitated and fostered the petitioner’s bond with the child
Individuals in these cases will likely be awarded visitation rights if not placed in a primary care role.
Co-parents without a biological relation to the child may find themselves in custody battles. In these instances, custody hearings may become even more complicated in these instances, as neither parent has an inherent legal right over the child.
Bleecker Family Law is Here For You
No matter your relationship, custody battles are emotionally taxing for all parties involved. Finding proper representation is paramount to navigating these cases and giving you peace of mind so that you can focus on what truly matters: the safety and well-being of your child.