Sep 06

One Reason the Court Easily Awards Joint Custody: The Extraordinary Circumstance of Compromise

Written by: Mikaila Matt


Joint Custody

In Family Court cases, many people believe sole custody means one parent has all rights to the child, and the other parent has none.  However, the term “sole custody” relates only to a parent’s authority to make major, life-altering decisions for the child.   

In contrast, joint custody allows both parents to be involved in the decision-making process for their child, but it isn’t the best fit for every family.

Differences Between Joint Custody and Sole Custody

South Carolina Statute § 63-15-210 provides the definitions of joint custody and sole custody in South Carolina Family Court.

When joint custody is awarded, each parent has equal rights for major decisions, but the Family Court may designate a party to have sole decision-making for specific major decisions.  The categories for major decisions usually include education, healthcare, extracurricular activities, and religious training.  Generally, with joint custody, each parent is required to consult with the other before making decisions about those areas of the child’s life, and if the parents cannot agree, then one parent will be designated as the final decision-maker.  Each parent will still have equal rights to make any other decisions.

A parent with sole custody of a child will have the authority to make any and all major decisions regarding education, healthcare, extracurricular activities, and religious training without having to consult with the other parent. 

joint custody South Carolina

Family Court Orders Must State Reasoning for the Decision

Under South Carolina Statute § 63-15-230, the Family Court is required to make the final custody decision based on the best interests of the child.  If custody is contested or either parent seeks an award of joint custody, the Family Court is required to consider all custody options, including, but not limited to, joint custody.  Once it makes a decision on the issue of custody, the Family Court judge is required to state their reasoning in the Final Order. This is also consistent with the requirement of Rule 26, SCRFC.

Preference for Sole Custody

Currently, there is a presumption that sole custody is more appropriate for most families, and South Carolina Family Court judges will typically order sole custody unless one of the parties can demonstrate “exceptional circumstances” warranting joint custody.

There is a long line of cases requiring “exceptional circumstances” for joint custody to be awarded. See Mixson v. Mixson, 253 S.C. 436 (1969) and Courie v. Courie, 288 S.C. 163 (Ct. App. 1986). The reasoning is “[d]ivided custody is usually harmful to and not conducive to the best interest and welfare of the children.” Scott v. Scott, 354 S.C. 118 (2003), citing Mixson.

The Scott court detailed its reasoning: 

The courts generally endeavor to avoid dividing the custody of a child between contending parties, and are particularly reluctant to award the custody of a child in brief alternating periods between estranged and quarrelsome persons. 

Under the facts and circumstances of particular cases, it has been held improper to apportion the custody of a child between its parents … for ordinarily it is not conducive to the best interests and welfare of a child for it to be shifted and shuttled back and forth in alternate brief periods between contending parties, particularly during the school term. Furthermore, such an arrangement is likely to cause confusion, interfere with the proper training and discipline of the child, make the child the basis of many quarrels between its custodians, render its life unhappy and discontented, and prevent it from living a normal life.

In recent years, the South Carolina Court of Appeals has been citing prior cases as reminders that joint custody is intended to be the exception, not the rule. See Clark v. Clark, 423 S.C. 596 (Ct. App. 2018) and Lewis v. Lewis, 400 S.C. 354 (Ct. App. 2012).

Most recently, in Tomlinson v. Melton, 428 S.C. 607 (2019), the Court of Appeals held: 

While we applaud both parents for their part in raising a respectful, intelligent, and caring child, the record reflects no exceptional circumstances to justify week-to-week divided custody.

On the contrary, the circumstances of this dispute reflect that divided custody is not in Child’s best interest. Here, the family court ordered divided custody for week-to-week periods. Week-to-week divided custody will rarely be in the best interest of the child, especially during the school year….

Additionally, the record reflects both Mother and Father have a divisive relationship and fail to communicate effectively. The record reflects over 4,500 text messages, calls, and emails from Mother to Father where she regularly and frequently requests changes to the schedule. Further, both parties think the other is a bad influence on Child….Because we find there are no exceptional circumstances, the divided custody is in brief periods, and Mother and Father’s relationship is acrimonious, we hold divided custody is not in the best interest of Child.

Ultimately, unless there are exceptional circumstances, the South Carolina Family Court starts from an assumption joint custody is typically harmful to minor children and not in their best interests. Spreeuw v. Barker, 385 S.C. 45, 61 (Ct. App. 2009).  

What are “Exceptional Circumstances” Warranting Joint Custody?

Since you must prove there are “exceptional circumstances” to support an award of joint custody, you need to know what South Carolina courts consider to be exceptional.

  1. When both parents agree to share joint custody
  2. When parents can communicate effectively, have similar parenting styles, and live near each other
  3. When there is potential for one parent to interfere with the child’s relationship with the non-custodial parent, and a schedule that is not disruptive to the child can be identified

If parties have a good co-parenting relationship, communicate well with each other, and trust each other, they are more likely to compromise on all issues related to the children, including whether joint custody is appropriate for their family. 

If parents cannot agree on whether to share joint custody or about which parent should have decision-making authority, then it is likely joint custody is not the best choice for the children.

Resource For Parents Who Have Joint Custody 

A common tool parents use to communicate about their minor children and strengthen their co-parenting relationship is Our Family Wizard.  Our Family Wizard allows parents to message each other, keep a shared calendar, keep an expense log, and a journal.  This keeps all child-related information in one place for both parents to easily access and update. 

If you are trying to decide whether to pursue joint custody or sole custody in South Carolina, you should consult with an experienced Family Court lawyer who can help identify whether there are any relevant exceptional circumstances affecting your child’s best interests.

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