When a married couple separates, both parents have equal rights to seek custody of their children. But custody arrangements are less cut and dry for unmarried parents. By default, South Carolina grants sole custody of a child to the natural mother if she is unmarried. Unmarried fathers can only petition the court for custody when their paternity is legally acknowledged or adjudicated.
Does a Father Have to Establish Paternity Before Seeking Custody of a Child?
When a couple is unmarried and expecting a baby, the father must establish paternity before he can seek custody. In cases where a child is born to unmarried parents, the court automatically grants sole custody to the natural mother unless she voluntarily forfeits her legal rights or signs an affidavit to acknowledge the father’s legal rights.
Paternity is legal fatherhood. Establishing paternity means both parents maintain equal rights to the child in the court’s eyes. South Carolina parents can establish paternity for a child in several ways:
- At birth – A father can establish paternity when a child is born by completing a Paternity Acknowledgment Affidavit document. When signed by the mother and father at birth, this legal document formally acknowledges the man as the child’s biological father. The father’s name can appear on the child’s birth certificate if he has legal paternity. But if a father signs a birth certificate without a Paternity Acknowledgement Affidavit, he will not have legal paternity in South Carolina.
- After leaving the hospital – Unmarried parents can also establish paternity after a child is born. If a mother and father want to establish paternity voluntarily, they can file a Paternity Acknowledgment Affidavit after the child’s birth. Parents must file the affidavit with either the South Carolina Department of Health and Environmental Control (SCDHEC) or the health department in the county where the child was born.
- Without the mother – Fathers can establish their paternity independently by completing a Non-Custodial Parent Application for Child Support Services. The application can be found online and at local child support offices for the South Carolina Department of Social Services (DSS). After the father completes the application and submits a processing fee, DSS can conduct a DNA test to establish biological paternity. This option does not require the mother to sign.
- Without the father – The mother can file a Custodial Parent Application for Child Support Services and request genetic testing if the father doesn’t want to establish paternity.
Can the Court Award Joint or Sole Custody?
South Carolina courts award custody based on the best interests of the child. Establishing paternity gives both parents equal custody rights. When determining the best custody arrangements for a child, a judge generally considers the following:
- Each parent’s relationship with the child
- Each parent’s emotional, physical, and financial fitness
- Each parent’s ability to care for the child
- Each parent’s living situation
- Any history of drug use, neglect, or domestic violence
- Other relevant factors
After reviewing all the evidence, a judge can grant joint or sole custody. South Carolina defines joint custody as both parents having equal rights to make significant decisions concerning the welfare and upbringing of their child. Sole custody means only one parent has the temporary or permanent responsibility to make important decisions about things like the child’s education, medical care, and religious activity.
There are also two types of child custody in South Carolina:
- Legal – Legal custody is a parent’s ability to make important decisions about their child’s well-being. These decisions include where they will go to school, what church they will attend, and what medical care they will receive.
- Physical – Physical custody involves the actual care and supervision of the child.
Either of these custody arrangements can be sole or joint. However, a parent without legal custody of their child cannot have physical custody.
In cases where one parent gains sole custody, the other parent can get visitation rights with a court-approved custody agreement. The parent with sole custody might also be entitled to receive child support payments from the non-custodial parent.
Child support is money that one parent pays to another parent to help raise their child and maintain the child’s standard of living. Determining child support payments involves reviewing each parent’s gross income, earning capacity, and overall financial status. The cost of health insurance, childcare expenses, and the number of other children in the home can also play a role. South Carolina provides Child Support Guidelines for parents to estimate how much they could owe in support payments.
What Should the Parents Do After Custody Is Granted?
After a court order custody arrangement, both parents must be willing to put the best interests of their child front and center. To avoid potential legal complications, parents must follow court-established custody guidelines. That means adhering to visitation schedules, custody arrangements, and other relevant court orders. Violating a family court order can come with significant legal ramifications.
If you disagree with a family law judge’s final ruling, you and your attorney can appeal the judge’s decision. However, you must file your notice to appeal within 30 days of the decision. When you file an appeal, a higher court can review the lower court’s determination to ensure it followed proper legal procedures during your original case.
If there is a sudden change in your situation, you can also request a child custody modification. However, you should never attempt to modify the terms of a child custody agreement on your own. Deviating from a court-ordered custody arrangement can have significant legal consequences. If the court holds you in contempt for violating a custody order, you could face penalties like fines and possible jail time.
Contact a South Carolina Family Law Attorney
At McKinney, Tucker & Lemel LLC, we understand how complicated South Carolina’s custody laws can be and are committed to protecting the rights of unmarried parents and their children. If you are an unwed parent concerned about child custody issues, our attentive team can review your situation and outline your legal options in a consultation.
Don’t fight for your child’s future alone. Get an experienced and knowledgeable child custody lawyer on your side. Contact McKinney, Tucker & Lemel LLC today. Our compassionate team is ready to provide the support and legal advice you need.
