Non Parental Custody Rights: Child Custody Laws in SC

In South Carolina, the welfare of the child and the child’s best interest is the primary, paramount and controlling consideration of the court.  Cook v. Cobb, 271 S.C. 136, 245 S.E.2b 612 (1978). There is also a rebuttable presumption that custody of a child with the natural parents is in that child’s best interest. Moore v. Moore, 300 S.C. 75, 386 S.E.2d 228 (1975). South Carolina, however, has recognized ways in which custody of a minor child may be best served in the hands of a non-parent.

South Carolina Custody Laws

Under South Carolina law, there are 2 methods in which a non-parent may seek custody over a child. One of these methods is by proving to the court that the non-parent is a “de facto custodian” of the child. Pursuant to South Carolina Children’s Code Title 63-15-60 (B), “If the court determines a person is a de facto custodian of a child, that person has standing to seek visitation or custody of that child.” In order to qualify as a de facto custodian, the non-parent must prove to the Court by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who: (1) has resided with the person for a period of six months or more if the child is under three years of age; or (2) has resided with the person for a period of one year or more if the child is three years of age or older. Also, the non-parent must prove that the child’s natural parents are unfit or that other compelling circumstances exist.

The other method is a doctrine recognized by South Carolina Courts called the “Psychological Parent Doctrine,” which allows for a non-parent to seek custody of, or more commonly, visitation with a child. To prove the psychological parent relationship exists, the Court has adopted a 4-prong test.

The petitioner must show:

  1. that the natural or adoptive parent[s] consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
  2. that the petitioner and the child lived together in the same household;
  3. that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; [and]
  4. that the petitioner has been in a parental role for the length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Middleton v. Johnson, 369 S.C 585, 633 S.E.2d 162 (Ct.App. 2006).

The first prong of the test is very important because it requires that the natural parent intentionally make the non-parent a part of the child’s life. The zone of privacy around a minor child is under absolute control of the parent.  In other words, the parent has control over who his or her child interacts with. By a natural parent allowing a third-party to assume the care over his or her child, the natural parent relinquishes a portion or his or her parenting rights in favor of the third-party.

Also important is the second prong. South Carolina Courts have said that the length of time the child has resided with the psychological parent and the degree of residence the child has with the psychological parent also play a part in the Court’s determination. However, the primary concern for the courts regarding this element is the length of time the child has resided with the non-parent.

The last 2 prongs are the most important to Family Courts because they ensure that the psychological parent assumed responsibilities of parenthood and that there is a parent-child bond between the psychological parent and child.  In order to attain custody, a psychological parent must be affirmatively involved in the child’s life, providing for the child’s care, education and development. However, when both natural parents are involved in the child’s life, a third party’s relationship with the child could never rise to the level of a psychological parent, as there is no parental void in the child’s life. In other words, as long as both parents are caring and providing for their children, no third-party is necessary or warranted.

Additionally, the length of time the psychological parent acted in a parental capacity must be sufficient for a parent-child bond to have been established. South Carolina Courts have defined the time necessary for a psychological parent to develop a parent-child bond “substantial, not temporary, duration . . . ,” and as long as it takes to form an “emotional and spiritual connection, ordinarily only expected in the relationship of a legal parent and child.” Middleton, 369 S.C at 599-600. In other words, the time needed cannot be for a short amount of time, it must be for long enough to form a bond between the child and the psychological parent.

Child Custody Laws in SC

When attaining custody, a non-parent must show that he or she has been the closest thing to a natural parent that a child has. Whether attempting to attain custody as a “de facto custodian” or as a “psychological parent,” a non-parent has a high hurdle to jump in order to prove that his or her custody is in the best interest of the child.  This is why such stringent safeguards are in place, so not just anyone can claim custody over our children.

Non Parental Custody Rights in South Carolina

If you are a non-parent seeking custody, or have any other question, we are here to help.  At Schiller & Hamilton, all of our attorneys and staff are family-oriented people, and we treat our clients as we would members of our own family. We are devoted to making sure that you receive great representation with whatever problems you face.

 

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