Every custody decision in South Carolina turns on one phrase. You will hear it from your lawyer, read it in the pleadings, and hear the judge say it from the bench. What almost nobody explains is that the phrase is not vague judicial language. It is a statute, and it contains a list.

The standard is a statute, not a feeling

S.C. Code § 63-15-240(B) governs, and its opening words matter as much as the list that follows:

“In issuing or modifying a custody order, the court must consider the best interest of the child, which may include, but is not limited to: …”

Three things there are doing work. The court must consider the child's best interest — it is not optional. The listed factors are what that consideration may include, so the court is not required to make a finding on every one. And the list is expressly not limited to what follows, which is why the seventeenth factor is a catch-all.

Note also that the section applies to a modification as much as to an original award. The words are “issuing or modifying.”

The seventeen factors

Here is what the statute lists. The wording below tracks the section closely.

1. 1The temperament and developmental needs of the child.
2. 2The capacity and the disposition of the parents to understand and meet the needs of the child.
3. 3The preferences of each child.
4. 4The wishes of the parents as to custody.
5. 5The 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. 6The 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. 7The manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute.
8. 8Any effort by one parent to disparage the other parent in front of the child.
9. 9The ability of each parent to be actively involved in the life of the child.
10. 10The child's adjustment to his or her home, school, and community environments.
11. 11The stability of the child's existing and proposed residences.
12. 12The 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. 13The child's cultural and spiritual background.
14. 14Whether the child or a sibling of the child has been abused or neglected.
15. 15Whether 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, between a parent and another individual, or between the parent and the child.
16. 16Whether 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.
17. 17Other factors as the court considers necessary.

Four of them are about how you behave during the case

Read factors six, seven and eight together and a pattern appears. The statute is not only asking who is the better parent in the abstract. It is asking how each parent is conducting themselves right now, while the case is pending.

The court is directed to consider whether you encourage the child's relationship with the other parent, including compliance with court orders. It is directed to consider manipulation or coercive behaviour aimed at pulling the child into the dispute. And it is directed to consider any effort to disparage the other parent in front of the child.

This is where clients most often damage themselves, usually by text message. A parent who is doing well on stability and involvement can lose ground on three separate statutory factors in a single evening.

Those behaviours have consequences beyond the custody analysis. Our post on how to enforce a visitation order in South Carolina covers what happens when one parent stops following the order.

What the list does not say

Just as useful is what is absent.

What the court can order

Subsection (A) of the same section lists what a custody order may include: approval of a parenting plan; sole custody to one parent with appropriate parenting time for the other; joint custody; or other arrangements the court determines to be in the child's best interest.

Where joint custody is ordered, the statute requires the order to spell out two things — the residential arrangements with each parent according to the needs of each child, and how consultations and communications between the parents will happen on major decisions about health, medical and dental care, education, extracurricular activities and religious training.

Our post on joint custody in South Carolina covers when courts order those arrangements.

How to prepare

Frequently asked questions

Does the court have to make a finding on all seventeen factors?

No. The statute says the analysis “may include, but is not limited to” the listed factors. The court considers what is relevant to the case in front of it, and factor seventeen lets it consider anything else it finds necessary.

Do mothers get preference in South Carolina?

Not under the statute. Section 63-15-240(B) never mentions the sex of a parent.

How much does what my child wants count?

It is one of the seventeen factors. The statute sets no age and does not make the preference controlling. In practice its weight rises as a child gets older and more mature, but it never becomes the decision.

Does this apply if we already have an order?

Yes. The section applies to “issuing or modifying” a custody order, so the same factors frame a modification. See our post on whether custody and visitation awards can be modified in South Carolina for what a modification requires.

Is a parent with a disability at a disadvantage?

Not on that basis alone. The statute states that a disability, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child.

Talk to a Charleston custody lawyer

Custody cases are won on the facts that map onto the statute, and lost on the ones a parent did not realise were being weighed. 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.