How to File for Custody of a Child in South Carolina

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Child custody is one of the most emotional types of family law cases. These matters often involve allegations of parental unfitness and even abuse and neglect, which can trigger conflict with the other parent. Even if your case seems amicable, you must hire skilled legal representation. Greenville, SC custody lawyer Angela Frazier shares what you need to know.

South Carolina Custody Laws

Whether you are getting a divorce or you have separated from the other parent of your child, it’s important to work out custody. This is especially the case if there are allegations of child abuse, child neglect, or domestic violence. But even in cases in which the parents get along with each other, custody needs to be resolved to avoid future disputes and misunderstandings.

Under South Carolina law, the court’s primary concern is the best interests of the child, which takes precedence over the wishes of the parents. Custody can be mediated between the parents, with an agreement reduced to writing (which must be approved by the judge). If this isn’t possible, custody can be litigated in court.

What Are the Different Types of Custody?

There are three distinct elements of child custody cases:

Physical custody

This concerns which parent the child lives with from day to day. It also involves related matters like which parent will have the child during holidays, vacations, and birthdays. One parent may have sole physical custody or the two may share joint custody, depending on the circumstances.

Joint custody does not necessarily mean equal parenting time.

Legal custody

Legal custody involves which parent has the right to make major decisions for the child. These include decisions about the child’s education, medical and dental care, extracurricular activities, and religious upbringing. Parents usually share legal custody unless it is not in the child’s best interests. If one parent has sole legal custody, the other parent can still access the child’s records.


Also known as parenting time, all parents are generally allowed visitation with their children, regardless of the exact physical and legal custody arrangement. An exception is if a parent’s parental rights have been terminated. At a minimum, parents will usually be entitled to one weeknight visit and overnight visits every other weekend. A parent cannot interfere with or refuse the other parent’s visitation with the child.

Non-Parental Custody Rights in South Carolina

A non-parent can use one of two approaches to obtain custody in South Carolina. First, the person may claim that he or she is a de facto custodian of the child. This requires a determination that the petitioner has been the child’s primary caregiver and financial supporter and that the child has:

  • Resided with the petitioner for at least six months, if the child is under the age of three


  • Resided with the petitioner for at least one year, if the child is three years of age or older

It must also be shown that the child’s natural parents are unfit or that there are other compelling circumstances.

The second approach is to assert the Psychological Parent Doctrine. The non-parent must prove four elements to use this method:

  • The natural or adoptive parents allowed and fostered the formation of a parent-like relationship between the petitioner and child
  • The petitioner and child resided together in the same household
  • The petitioner assumed typical parenting duties like providing for the child’s care, education, and financial support (without expecting compensation)
  • The petitioner has served in a parental role long enough to have established with the child a bonded, dependent, parent-life relationship

Who Decides Custody and Visitation?

Parents are allowed to come up with their own custody and visitation arrangements. Most custody matters must be handled first in mediation to determine if the parents can resolve them without a trial. Mediation is a process by which a neutral third party, known as a mediator, facilitates negotiations between the parents. The mediator does not decide issues for the parties and cannot compel either parent to agree to a proposed settlement. Parents are allowed to have an attorney present and should do so to ensure their rights are protected and that they understand the proposed settlement terms.

If the parents can reach an agreement during mediation, a written agreement containing detailed custody and visitation terms will be drafted. The judge must then review and approve the agreement to ensure it protects the child’s best interests. The chances of approval are much higher if an attorney helps.

Conversely, if the parents cannot agree during mediation, then a custody trial must be held.

Mediation is still an option before trial, however, if the parents decide to attempt it again.

How to Get Full Custody in South Carolina

This is how to get custody of a child in South Carolina:

  1. File a petition with the Family Court. This document will contain details like the identities of the parents and child, the child’s age, and the type of custody (including sole custody) being sought. You must file the petition in the county where you live and pay any associated fees.
  2. Serve a copy of the filed petition on the other parent. The other parent must know about the petition before a judge can make a decision. This requires service of the filed paperwork, which can be accomplished by giving a copy of it to the sheriff’s office in the county where the other parent lives. Once served, the other parent has 30 days to respond.
  3. Schedule a temporary hearing. After the 30 days have passed, the petitioner can ask for a temporary custody hearing. This can be done by contacting the clerk or assistant in charge of the case. A notice with the date, time, and location of the hearing must then be sent to the other parent.
  4. Attend mediation. The court will probably order the parents to attend mandatory mediation if the custody petition is contested. There are rare cases in which a party may be excused from mediation by formally motioning the court. For instance, if there is domestic violence between the parents, the court may not require mediation.
  5. Attend trial, if necessary. If mediation fails or a parent is excused from it, then a custody trial will be necessary. Before trial, the parents typically exchange discovery requests through their lawyers. These are requests for documents and information regarding relevant facts and issues raised by the custody petition. At trial, the judge will examine numerous factors to decide which custody arrangement is in the child’s best interests.

Talk to a Child Custody Lawyer at Elliott Frazier Law Firm Today

The best way to make your strongest case is to ask an attorney how to file for custody in South Carolina. An experienced lawyer can help with the above and related aspects of your custody and visitation request. Elliott Frazier — Family, Personal Injury, & Car Accident Attorneys, LLC is your trusted legal ally. Give us a call today to get started.

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