To obtain a child custody modification in South Carolina, the moving party must first meet the threshold burden of showing a material or substantial change in circumstances occurring subsequent to the entry of the existing custody order. Spreeuw v. Barker, 385 S.C. 45, Daily v. Daily, 432 S.C. 608, Hollar v. Hollar, 342 S.C. 463.
A qualifying change in circumstances simply means that sufficient facts have been shown to warrant the conclusion that the child's best interests would be served by the modification Spreeuw v. Barker, 385 S.C. 45, Daily v. Daily, 432 S.C. 608, Hollar v. Hollar, 342 S.C. 463. Once this threshold is met, the family court's controlling consideration is the welfare and best interests of the child, evaluated under the totality of the circumstances peculiar to each case Daily v. Daily, 432 S.C. 608, Hollar v. Hollar, 342 S.C. 463, Kisling v. Allison, 343 S.C. 674.
The Best Interest of the Child Standard
Under South Carolina law, the family court must make its final custody determination in the best interest of the child based upon the evidence presented Daily v. Daily, 432 S.C. 608, S.C. Code Ann. § 63-15-230. To evaluate the child's best interests, the court must consider how the custody decision will impact all areas of the child's life, including physical, psychological, spiritual, educational, familial, emotional, and recreational aspects Kisling v. Allison, 343 S.C. 674, Brown v. Brown, 362 S.C. 85, Turner v. Thomas, 431 S.C. 527. Additionally, the court must assess each parent's character, fitness, attitude, and inclinations as they impact or affect the child Daily v. Daily, 432 S.C. 608, Kisling v. Allison, 343 S.C. 674, Brown v. Brown, 362 S.C. 85, Turner v. Thomas, 431 S.C. 527.
Statutory Best Interest Factors
Pursuant to South Carolina statutory law, the court must consider the best interest of the child, which includes a non-exhaustive list of seventeen statutory factors:
- The temperament and developmental needs of the child S.C. Code Ann. § 63-15-240;
- The capacity and disposition of the parents to understand and meet the needs of the child S.C. Code Ann. § 63-15-240;
- The preferences of each child S.C. Code Ann. § 63-15-240;
- The wishes of the parents as to custody S.C. Code Ann. § 63-15-240;
- The past and current interaction and relationship of the child with each parent, siblings, and any other person (such as a grandparent) who may significantly affect the child's best interest S.C. Code Ann. § 63-15-240;
- The actions of each parent to encourage a continuing parent-child relationship with the other parent, including compliance with court orders S.C. Code Ann. § 63-15-240;
- Any manipulation or coercive behavior by the parents to involve the child in the dispute S.C. Code Ann. § 63-15-240;
- Any effort by one parent to disparage the other parent in front of the child S.C. Code Ann. § 63-15-240;
- The ability of each parent to be actively involved in the child's life S.C. Code Ann. § 63-15-240;
- The child's adjustment to his or her home, school, and community environments S.C. Code Ann. § 63-15-240;
- The stability of the child's existing and proposed residences S.C. Code Ann. § 63-15-240;
- The mental and physical health of all individuals involved, provided that a parent's disability is not determinative on its own unless the proposed arrangement is contrary to the child's best interest S.C. Code Ann. § 63-15-240;
- The child’s cultural and spiritual background S.C. Code Ann. § 63-15-240;
- Whether the child or a sibling has been abused or neglected S.C. Code Ann. § 63-15-240;
- Whether a parent has perpetrated domestic violence or child abuse, or the effect of an abuser's actions on the child S.C. Code Ann. § 63-15-240;
- Whether a parent has relocated more than 100 miles from the child’s primary residence in the past year (unless relocated for safety reasons) S.C. Code Ann. § 63-15-240; and
- Other factors as the court considers necessary, which may include the opinions of third parties, such as a Guardian ad Litem (GAL) or expert witnesses Daily v. Daily, 432 S.C. 608, S.C. Code Ann. § 63-15-240.
Evaluation of the Child's Custody Preference
In determining the best interests of the child, the court must consider the child's reasonable preference for custody Brown v. Brown, 362 S.C. 85, S.C. Code Ann. § 63-15-30. The court will place weight upon this preference based upon the child's age, experience, maturity, judgment, and ability to express a preference Brown v. Brown, 362 S.C. 85, S.C. Code Ann. § 63-15-30. However, the weight given to these wishes must remain dominated by what is best for the welfare of the child, and the child's preference will be given little weight if their wishes are influenced by the permissive attitude of the preferred parent Brown v. Brown, 362 S.C. 85. Additionally, the trial judge is not required to take testimony directly from the children if counsel fails to request it and the child’s GAL testifies regarding the child's preference Brown v. Brown, 362 S.C. 85.
Procedural Scope and Custody Options
When issuing a modification, the court is authorized to award joint custody or sole custody S.C. Code Ann. § 63-15-230, S.C. Code Ann. § 63-15-240. If custody is contested or if either parent seeks joint custody, the court must consider all custody options, state its final determination, and outline its specific reasoning in the final order S.C. Code Ann. § 63-15-230. A modification order may approve a parenting plan, award sole custody with appropriate parenting time to the noncustodial parent, or award joint custody S.C. Code Ann. § 63-15-240. If joint custody is awarded, the order must address residential arrangements and detail how consultations and communications will occur regarding major decisions like health, education, extracurriculars, and religious training S.C. Code Ann. § 63-15-240. The court also retains the authority to allocate parenting time in the best interest of the child regardless of the ultimate custody designation S.C. Code Ann. § 63-15-230.
To obtain a child custody modification, a party must first establish a material change in circumstances that substantially impacts the child's welfare. If this threshold is met, the family court conducts a highly fact-specific inquiry to determine the child's best interests. This inquiry requires weighing the child's physical, emotional, and educational well-being, evaluating the fitness and character of each parent, assessing the child's reasonable preference in light of their maturity, and analyzing the statutory best interest factors.
At Seibert Law and Mediation, we believe families thrive when they are empowered to build solutions, not forced into conflict. If you’re facing a difficult chapter, we’re here to help you move forward with clarity, compassion, and dignity. The most important step you can take is to speak with an experienced family court attorney immediately.
Divorces, Separate Maintenance and Support, and custody and visitation matters in South Carolina can be highly technical, and small factual details often make the biggest difference. If you or someone in your family is faced with family court, don’t assume the case is open-and-shut. At Seibert Law and Mediation, we examine every angle to fight for the best possible outcome.
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