Imagine you have a custody arrangement entered by the court awarding your ex-spouse custody of your minor children. You as the noncustodial parent are looking for a way to modify custody. The only problem is: You don’t know what you need to prove to the court. If you are seeking to modify your custody agreement in South Carolina, you should hire an experienced local family law attorney to help you evaluate your claim and build your case. In South Carolina, a family court retains jurisdiction to modify a previous custody order, regardless of whether the order is awarding sole or joint custody. However, the requirements for modifying custody are high.
What Do I Need to Prove to Modify Custody?
In the seminal case of Moss v. Moss, 274 S.C. 120 (1980), the Supreme Court of South Carolina enumerated the factors a moving party must prove in order to modify custody:
- A substantial change in circumstances;
- The substantial change in circumstances occurred after the most recent family court custody order; and
- The substantial change substantially affects the child(ren)’s best interests and welfare.
As suggested by these three factors, a South Carolina court’s primary consideration for whether to change custody is whether this change would be in the best interests of the minor child(ren). South Carolina law (S.C. Code Ann. § 63-15-240(B)) specifically enumerates a list of factors a court should consider in determining what is in the best interests of the children, including, but not limited to:
- The temperament and developmental needs of the child;
- The preferences of each minor child;
- The capacity and disposition of the parents to understand and meet the needs of the child;
- The wishes of each parent as to custody;
- The past and current interaction and relationship of the child with each parent, the child’s siblings, and relatives who may significantly affect the best interest of the child;
- The actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, including compliance with court orders;
- Any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
- Any effort by one parent to disparage the other parent in front of the child;
- The ability of each parent to be actively involved in the life of the child;
- The child’s adjustment to his or home, school, and community environments; and
- The stability of the child’s existing and proposed residences.
Common Bases for Modifying Custody
Although there are many possible reasons to warrant a modification of custody in a South Carolina family law case, there are some common scenarios that justify a modification.
- Poor Parenting by the Custodial Parent (Parental Unfitness): At times, a custodial parent may engage in several forms of poor parenting. This could manifest itself in several different ways including, but not limited to, putting their needs and happiness above their child’s, preventing a child from developing a sense of responsibility and independence, mental or physical abuse of the child, or lack of supervision of the child. Examples may include sheltering and preventing a child from attending school or constantly degrading the child.
- Unstable Home Environment: A custodial parent may engage in behavior that negatively impacts the minor child(ren) and their home environment. For example, if the parent has many job losses in a short period of time causing an erratic schedule or constantly moving the child(ren) to different homes to live.
- Immoral and Inappropriate Conduct: One basis for modifying custody may arise from a custodial parent engaging in inappropriate child that affects a child’s welfare. This may include constantly exposing a child to different overnight romantic guests or abusing drugs or alcohol in front of a child. This category may combine with others to create a particularly strong case for modification of custody. For example, if a custodial parent drinks to excess in front of a minor child, then says derogatory things about a non-custodial parent and abandons that child in a public place while intoxicated, all of these factors would be relevant to a modification proceeding.
- Child’s Sudden Poor Performance at School: If a child was a straight A student when the custody order was entered and suddenly the custodial parent is constantly making the student late for school, encouraging the student to skip school to attend outside events, or refusing to get a student help they need through tutoring or other outside classes, this may be a basis to modify custody.
- Alienation of the Noncustodial Parent by the Custodial Parent: If a custodial parent engages in alienating behavior, this may also be a basis to modify custody. Courts want to see that neither parent is intentionally trying to alienate a child from the other parent. Thus, they do not look favorably on a custodial parent if there is evidence that the parent is repeatedly disparaging the other parent, purposely obstructing a child’s visitation with the noncustodial parent, or otherwise interfering in the noncustodial parent’s relationship with the child.
Some Examples from South Carolina Case Law
It may be helpful to examine some examples from South Carolina case law to illustrate the common grounds for modification listed above. In Kisling v. Allison, 343 S.C. 674 (S.C. Ct. App. 2001), the South Carolina Court of Appeals found custody should be changed, citing the custodial parent’s chaotic living situation that was causing the child to experience stress and separation anxiety, as well as her inattentiveness to the child’s education problems.
Further, in Watson v. Poole, 329 S.C. 232 (S.C. Ct. App. 1997), the Court found a mother’s alienating behavior towards the noncustodial parent warranted modification of custody. Specifically, the court found the mother continually made unfounded allegations of child molestation against the father and refused to foster a relationship between the child and the father.
What is NOT a Basis for Modifying Custody?
Not all changes are enough to warrant a modification in custody. First, remarriage by itself is not sufficient to warrant a change in custody. For example, a parent may remarry and as a result, their household may arguably become more stable than the custodial parent’s. However, without more, this is likely insufficient to warrant a custody modification. Similarly, the birth of another child typically also will not suffice as a grounds for modifying custody.
Contact an Experienced South Carolina Custody Lawyer Today
Modifying custody is a tricky and uphill battle. Your best bet is to hire an experienced South Carolina family law attorney to help you develop and strengthen your claim to maximize your chances of success. The skilled Greenville, South Carolina family law attorneys at Elliott Frazier Law Firm, LLC can help you think through the facts of your case and strategically assemble them in a streamlined and persuasive manner. Contact us today for a case evaluation!
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.