MYTH BUSTER: BAD SPOUSES ARE NOT NECESSARILY BAD PARENTS

Family Court Myth-Buster Series: Part 2
What to Expect in a Custody Case

Few things are more trying for parents than a contested custody case in Family Court. Children are always the innocent victims in these situations. The children are at the mercy of their parents’ good or bad decisions. The children love both parents. Conventional wisdom and parenting experts tell us that children do best with two active, involved parents.

The myth to bust here is: Bad behavior in a marriage will result in a loss of custody. The truth is: Family Court is not going to use an award or denial of child custody to punish or reward the child’s parents. Instead, the Court will employ a “best interest” standard in determining custody if the parents are unable to agree on a schedule and parenting plan for the children.

“A useful working definition of “best interests” is “what combination of factors this child needs in a custody and/or access arrangement that will sustain his or her adjustment or development.” Joan B. Kelly, The Best Interests of the Child: A Concept in Search of Meaning, 35 Family and Conciliation Courts Review 377, 378 (1997).

Professor Stuckey’s book, Marital Litigation in South Carolina, provides a useful discussion of “best interests”:
“No area of law seems to operate under a single standard more than child custody. All jurisdictions recognize the principle that the best of the child is the controlling factor in custody cases.” P 466. “Even though this area of law is nominally governed by a single principle, it is muddled by difficulty of definition and explanation.” Professor Stuckey quotes Ford v. Ford, 242 S. C. 344, 130 S.E.2d 916 (1963), “the difficulty is not in the recognition of the foregoing principles, but in the application thereof to the facts of the case, and determining wat is for the best interests of the children involves a consideration of all the circumstances of a particular case and, usually, many factors.

South Carolina now has statutorily mandated factors that a Family Court must consider in making a custody determination. The law, found at SC Code Section 63-15-240(b), requires that: “In issuing or modifying a custody order, the court must consider the best interest of the child, which may include but are not limited to:
(1)the temperament and developmental needs of the child;

(2) the capacity and the disposition of the parents to understand and meet the needs of the child;

(3) the preferences of each child;

(4) the wishes of the parents as to custody;

(5) the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;

(6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;

(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;

(8) any effort by one parent to disparage the other parent in front of the child;

(9) the ability of each parent to be actively involved in the life of the child;

(10) the child’s adjustment to his or her home, school, and community environments;

(11) the stability of the child’s existing and proposed residences;

(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;

(13) the child’s cultural and spiritual background;

(14) whether the child or a sibling of the child has been abused or neglected;

(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;

(16) whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and

(17) other factors as the court considers necessary.
Bad behavior on the part of a parent, if it impacts the children, could fall under the “other factors as the court considers necessary.” But it is important to remember that being a bad spouse does not necessarily equate to being a bad parent.

If you need help with a custody or visitation case in Anderson, Abbeville, Pickens or Oconee Counties of South Carolina, contact me via email at mj@mjgoodwin.com

M. J. Goodwin
April 6, 2018

NOTE: **THIS WRITING DOES NOT APPLY TO CASES INVOLVING ABUSE OR NEGLECT OF CHILDREN OR CASES THAT INVOLVE THE DEPARTMENT OF SOCIAL SERVICES. THIS WRITING APPLIES ONLY TO PRIVATE CUSTODY ACTIONS BETWEEN PARENTS**

mjgoodwin

administrator

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