The letter from the Department of Social Services says the case is closed and the report was unfounded. If you were the parent under investigation, you probably expect that word to settle things. If you were the parent who called DSS, you may be wondering whether the finding will be held against you. In a Charleston, Berkeley or Dorchester County custody case, an unfounded DSS report is rarely the end of the story, and both parents need to understand why.

Short answer: An unfounded finding means DSS did not find enough evidence of abuse or neglect. It does not erase the report. The fact that a report was made, when, by whom and about what can still be relevant to custody, because South Carolina's best-interest factors ask whether a parent supports the child's relationship with the other parent or works against it. The DSS file itself is confidential, so getting it in front of a family court judge takes a specific process: the judge reads the records privately, decides what is relevant, and releases only that part under seal.

What "unfounded" actually means

South Carolina's Children's Code sorts every DSS report into one of three categories: suspected, indicated or unfounded. Under S.C. Code § 63-7-20, an unfounded report is one "for which there is not a preponderance of evidence to believe that the child is abused or neglected." An indicated report is the opposite: the facts support a finding that abuse or neglect "is more likely than not to have occurred." Every report starts as suspected, and § 63-7-930 gives DSS no more than sixty days to move it into one of the other two columns.

Unfounded is not a single verdict. Section 63-7-930(C) splits unfounded reports into four categories, and two of them matter here. A Category I report is one "in which abuse and neglect were ruled out following the investigation." A Category II report is one where "the investigation did not produce a preponderance of evidence" of abuse or neglect. The first says DSS looked and found nothing. The second says DSS could not get to more-likely-than-not. A judge weighing what a report says about the parent who made it can be expected to read those two labels differently, so the category on the closing letter is worth finding before anyone argues about what the report means.

Categories III and IV cover investigations DSS could not finish and information it never investigated. Neither says anything about whether the allegation was true.

Why an unfounded DSS report still matters in a custody case

When a family court decides custody in South Carolina, S.C. Code § 63-15-240(B) lists the factors the judge must consider (our post on what "best interests of the child" actually means walks through all seventeen). Three of them are about how the parents treat each other, and they are the reason a closed DSS file can matter:

• •"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" (factor 6);
• •"the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute" (factor 7); and
• •"any effort by one parent to disparage the other parent in front of the child" (factor 8).

A single report made in good faith about a real concern fits none of those. A series of reports against the same parent, each timed to a custody filing or a holiday exchange, each closed as unfounded, is a different picture. The argument is not that the reporting parent lied. It is that the reports are evidence of how that parent handles the other parent's role in the child's life, which is exactly what factors 6 through 8 ask about. The same history can also bear on that parent's credibility when the two accounts of everything else conflict.

Notice the limits built into the statute. Factor 8 is about disparagement "in front of the child," so a report made to a caseworker, out of the child's hearing, is not itself factor-8 conduct. Factor 14 separately asks "whether the child or a sibling of the child has been abused or neglected," which is about what happened to the child, not about who reported it. How much weight a pattern of unfounded reports gets is for the judge, who is the fact-finder in family court, and the answer depends on the facts of the case rather than on any fixed rule.

The Court of Appeals' 2023 decision in Greene v. Greene shows how this plays out. There, the mother reported the father to DSS and the police after a remark by the child; DSS twice closed its investigations as unfounded and law enforcement twice declined to act. Affirming an award of joint custody, the court recited that history and pointed to the guardian ad litem's testimony that the mother "would not be able to encourage a relationship between Child and Father," while also noting the consensus that both were fit and loving parents. The court announced no rule about unfounded reports; it weighed the whole record. That is the point. The reports and their outcome became part of the picture the judge looked at, not a verdict on either parent.

One more point for the parent who made the report. Section 63-7-390 protects a person who reports suspected abuse or neglect in good faith, and good faith is presumed. If you saw something that worried you and called DSS once, the statute is on your side. What draws a court's attention is repetition, timing and the absence of any new facts.

The confidentiality wall around DSS records

The DSS file is not a public record, and neither parent can walk in and copy it. Section 63-7-1990(A) makes all DSS reports and the information collected in an investigation confidential, and the statute strictly limits who may see them. For records of indicated cases, § 63-7-1990(B) lists the people and agencies DSS may give access to, and the list includes parents of the child named in the report and the person named as having abused or neglected the child.

Unfounded reports have their own section. Under § 63-7-940(A), DSS must keep the information for at least five years, it is exempt from the Freedom of Information Act, and "access to and use of information contained in unfounded cases must be strictly limited" to the purposes the statute lists. One of those purposes is the one that matters in a custody case: the information may be used "as evidence in a court proceeding, if admissible under the rules of evidence as determined by a judge of competent jurisdiction."

Read together, the two sections mean the same thing for a parent: a court can let the records in, but only a court. Trying to get them any other way, or passing them along once you have them, is a mistake the statute takes seriously. If someone has shared DSS records with you outside the case, talk to a lawyer before you do anything with them.

How DSS records reach the judge: in camera review and release under seal

The mechanism for parties to a private case is spelled out in § 63-7-1990(B)(11). DSS records may go to "the parties to a court proceeding in which information in the records is legally relevant and necessary for the determination of an issue before the court," but only "if before the disclosure the judge has reviewed the records in camera, has determined the relevancy and necessity of the disclosure, and has limited disclosure to legally relevant information under a protective order." That sentence is the whole procedure, and each clause is a step:

• •The motion. A parent asks the family court to obtain the DSS file and review it. Because DSS is not a party, the request usually pairs a motion with a subpoena to DSS as the records custodian under Rule 45, SCRCP. If DSS produced an incomplete file earlier, the same motion can ask the court to compel the complete, certified file.
• •In camera review. The judge reads the file privately, without either parent seeing it, and decides what in it is "legally relevant and necessary" to the issues actually before the court.
• •Release under seal. The judge releases only the relevant portions to the parties. Those pages are filed under seal, not in the public file, so a stranger pulling the court record will not find the allegations or the children's names.
• •The protective order. Under Rule 26(c), SCRCP, the court sets terms: the records are used only for this case, stay with counsel, the court, any guardian ad litem and any retained expert, and are returned or destroyed when the case ends.

Sealing is not automatic in South Carolina. Rule 41.1, SCRCP starts from the presumption that court records are open and puts the burden on the party asking to seal. But the rule speaks directly to this situation. In family court matters the judge "shall also consider whether documents ... relate to sensitive custody issues, and shall specifically balance the special interests of the child or children involved." Every order sealing documents must "set forth with specificity the reasons that require they be sealed," so a good proposed order names the interests being protected: the children, and any adult named in an allegation that was never substantiated.

Our earlier post on the Supreme Court's decision opening DSS adoption files to discovery covers the related point that confidentiality concerns are handled with protective orders rather than by refusing discovery altogether. The same thinking runs through § 63-7-1990(B)(11).

Three ways an unfounded report can come into evidence

Getting the records released is one step. Getting the report in front of the judge as evidence at the temporary or final hearing is a second one, and there are three routes. They can be used together.

1. The other parent admits it

Family court cases allow discovery, including requests for admission under Rule 36, SCRCP. (Whether discovery is available in a contempt action is a separate question we covered in No discovery in a family court contempt action.) A request for admission asks the other parent to admit, in writing, a specific fact: that they made a report to DSS on a given date, about a given person, and that DSS closed it as unfounded. If they admit it, the matter "is conclusively established unless the court on motion permits withdrawal or amendment of the admission." No DSS file is needed to prove it.

Two features of Rule 36 shape how this is used. A matter is also admitted if the other side does not respond within thirty days. And withdrawal is not easy: the court may permit it only when "the presentation of the merits of the action will be subserved thereby" and the party who obtained the admission cannot show prejudice. The rule caps a party at twenty requests, including subparts, without leave of court, so the DSS questions have to be chosen with care.

2. The certified DSS record

If the court has released the records, the record showing that a report was made and how it was classified can be offered under the public-records exception to the hearsay rule, Rule 803(8), SCRE, and a copy certified by the DSS custodian is self-authenticating under Rule 902(4), SCRE, so no caseworker has to testify to what the document is. There is a limit that matters. Rule 803(8) provides "that investigative notes involving opinions, judgments, or conclusions are not admissible." The date, the subject and the classification of a report are one thing; a caseworker's opinion of either parent written into the file is another, and the second is not carried in by this rule.

3. The reporting parent's own words

A parent's statements to a DSS investigator, recorded in the file, are that parent's own statements. Offered against that parent, they are not hearsay at all under Rule 801(d)(2), SCRE, which covers "the party's own statement." What a parent told the caseworker, and when, can be compared with what the same parent says under oath at the hearing.

What the evidence does and does not prove

An order admitting a prior unfounded report should say what it is for, and a careful lawyer asks for that language. The evidence goes to pattern, motive and credibility under the best-interest factors. It is not proof that the underlying allegation was false, and it is not proof that it was true. An unfounded classification means DSS did not find a preponderance of evidence; it is not a finding that nothing happened. If the truth of the allegation is itself in issue, the court decides that on the full record.

The same caution runs the other way. A parent who was reported and cleared should not assume the judge will treat the report as proof of the other parent's bad faith. The judge weighs it with everything else, including how the two of you have handled exchanges, communication and court orders since. If a visitation order has been ignored in the meantime, enforcing it is a separate track and usually a stronger one.

Two notes on process. Nothing here applies to a case DSS itself has brought; those proceedings, including removal and permanency planning, run on their own rules, and our post on DSS permanency planning hearings is the place to start for those. And the arguments in this article about how §§ 63-7-940 and 63-15-240 fit together are how we approach these cases; they are not settled appellate holdings, and a judge may see it differently.

What to do now

• •Find the closing letter and the category. Category I and Category II say different things. Keep every letter DSS sent.
• •Write down the timeline. The date of each report, what was pending in the custody case at the time, and what changed afterward. Pattern is about timing.
• •Do not share DSS records outside the case. Send them to your lawyer and no one else.
• •Keep reporting real concerns. If your child is in danger, call DSS. A good-faith report is protected, and nothing in this article should keep a parent from making one.
• •Raise it early. In camera review, sealing and Rule 36 requests all take time. They belong in the plan before the temporary hearing, not the week before trial.

Frequently asked questions

Does an unfounded DSS report go away? No. Under § 63-7-940(A), DSS keeps unfounded case information for at least five years. It is confidential and exempt from FOIA, but it exists, and a court can allow it to be used as evidence.

Can I get a copy of the DSS file on my own? For an indicated case, § 63-7-1990(B) allows DSS to give access to the parents of the child named in the report and to the person named as the alleged abuser, with some medical and mental-health material subject to notice. For a private custody case, the route to the full file is a court order after in camera review.

Will the DSS records be public once they are in my case? Not if the order is done properly. Section 63-7-1990(B)(11) requires a protective order, and Rule 41.1 lets the court seal the records, weighing the special interests of the children involved.

I reported my ex to DSS once because I was worried. Will that be used against me? A single good-faith report about a real concern is protected by § 63-7-390 and is not what the best-interest factors are aimed at. Repeated reports with no new facts, timed to the custody case, are a different matter.

Talk to a Charleston custody lawyer about DSS records

Deciding whether to put a DSS history in front of the judge, and doing it in a way that protects your children's privacy, is a judgment call that depends on the file. Klok Law Firm handles South Carolina family law in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.