South Carolina Custody Process: What To Expect in Court

The goal of the custody process is always to meet the child's best interests, whether it's part of a divorce case or a case solely about child custody.

You can ask a judge to review and approve a parenting plan for inclusion in your court order. The judge is likely to approve it if you and the other parent submit it together. If you submit different proposals, the judge can accept either one, combine aspects of both or reach an altogether different decision.

As soon as you reach full agreement, you can skip to the final hearing. Otherwise, you'll likely be required to try mediation. If mediation is unsuccessful, your final hearing will be a trial where the judge will decide for you.

It's a good idea to hire an experienced South Carolina family lawyer. They can prepare you for what comes next in your court process, which can have twists and turns.

What your case will cost

If your case is uncontested — meaning you agree with the other parent on everything — the court filing fee of $150, the cost of serving papers to the other parent and a hearing fee of $25 may be all you pay.

If you need a lawyer, you'll also pay them. Some lawyers estimate the work for an uncontested case in advance and charge a flat fee, but others charge hourly.

Contested cases have additional costs.

A guardian ad litem investigates and reports on the best interests of your child; they might cost only $1,000 but may end up costing more than $5,000 depending on the complexity and speed of your case. Guardians ad litem are almost always brought into contested cases in South Carolina. It's up to the judge, not the parents.

Additionally, you might pay $5,000 or more for each of the following: a custody evaluation, a psychological evaluation and an expert witness at trial.

Then there's your lawyer. By the end of your case, you could owe them tens of thousands of dollars. Family lawyers typically don't charge flat fees for cases they believe will be contested because their workload will depend on how long the case lasts and what kind of help you ask them for.

To avoid or decrease these fees, try to settle your case.

How long it will take

For a no-fault divorce, you must live separately for one year before you file. After filing, the length of your case will depend on how complex it is and whether you can reach agreement on all issues (including money and property).

For a divorce with fault, the court won't require you to separate or wait to file, but after filing there's a 90-day waiting period before the divorce can be finalized. If if the other parent doesn't contest what you asked for and the court can schedule your final hearing quickly, the minimum 90 days may be all it takes; otherwise, it'll take longer.

If you and the other parent were never married, the child must have lived in South Carolina for six months (or from birth, if they're an infant) before you file for custody.

Family Court has a 365-day time limit for all cases. Once you file for divorce or custody, you must ask the court to schedule your final hearing — or at least formally ask to extend the deadline — before the year is out. If you don't, the judge can dismiss your case. Any temporary order you'd received would expire along with the case. You'd have to start over.

Opening a case

Opening a divorce or custody case is the first step toward getting a court order for how you'll co-parent. Either parent can do it.

You'll file paperwork and pay a fee, then formally give the paperwork to the other parent.

Most parents request their temporary hearing when they open a case. If you don't, either parent can request it later.

Temporary hearing

In contested cases, the court schedules a brief hearing, usually only 15 minutes, held about two to six weeks after you file your case. It's called a temporary hearing because decisions made here only have effect for the duration of your case.

In rare situations, some people get into court faster:

• An expedited hearing is for an issue that can't wait (like whether the case is in the right court) but doesn't rise to the level of physical danger.
• An emergency hearing is for a true emergency (like physical abuse or parental kidnapping).

After an expedited or emergency hearing to resolve an issue, the normal process continues, including a temporary hearing.

Preparing for the hearing

Within 45 days of the start of your case, each parent must file a Financial Declaration with the court. It must be notarized and have supporting documentation, like pay stubs, attached.

Bring an updated version to every hearing.

The court may require you to submit a proposed parenting plan before this hearing. If not, simply bring it to the hearing. Cover all the topics important to you. Once you get a court order, it's hard to change.

You can also turn in up to eight pages of affidavits (written statements of potential witnesses). The judge might not allow audio, video, text messages or social media posts as evidence at this stage, but they typically allow documents like your child's report cards.

What happens at the hearing

At the temporary hearing, the judge issues an order — covering things like visitation, child support and alimony, if applicable — that stays in place until your case is resolved. The judge could decide at the final hearing to make parts of this order permanent.

Your lawyer (if you have one) will be allowed to speak, and the judge will also consider written evidence. If you're allowed to speak, it's usually only to clarify a point briefly. Don't expect the judge to allow witnesses at this hearing. Don't bring children to any hearing without court permission.

Even though the temporary hearing is brief and based on limited evidence, you should treat it seriously because:

• You'll have to follow the temporary order until the judge changes it or issues a permanent order.
• The temporary order suggests how the judge may rule if you go to trial.
• The temporary order becomes your baseline for negotiations with the other parent.
• Any decision on paternity is a final ruling (unless a mistake or fraud is proven).

Usually, parents go home after the temporary hearing without yet knowing how the judge will decide, but sometimes the judge issues the ruling on the spot.

Mediation

If you and your co-parent can't settle on your own, South Carolina requires you to try mediation. They won't schedule your trial until you try it. Many people settle their cases this way.

You must attend mediation unless:

• The Department of Social Services is involved in your case because of abuse or neglect.
• You reach full agreement with your co-parent and file a Certificate of Exemption, and a judge approves your request.
• A judge approves your request to waive the mediation requirement for some other reason.

Some parents try mediation early — before their temporary hearing — since it has a high success rate, shortening cases and reducing expenses. However, most go immediately after their temporary hearing. Some wait a little longer, completing discovery first (details below) so they can negotiate based on what they learn.

Mediators are lawyers or former judges who try to help parents see eye to eye. The process may cost each parent only a few hundred dollars, but it depends on the number of sessions and whether the parents' lawyers attend too.

Most mediators in South Carolina speak privately to the guardian ad litem before you and the other parent come in for your session.

Be sure to prepare for your mediation sessions. Once you sign an agreement, it's likely impossible to back out.

Preparing for trial (discovery)

If you're headed for trial, a lawyer can help you prepare. You'll have to follow court procedures and meet deadlines.

Discovery is the legal process of obtaining information to use at trial. Once you or your co-parent submits discovery questions, the other typically has 30 days to respond. If one parent doesn't respond by the deadline, the other can file a motion to compel discovery. Consequences of not responding could include having to pay for the other parent's legal costs or not being allowed to present evidence.

During trial preparations, the guardian ad litem continues their investigation. If they haven't already, they'll interview you, the other parent, your child and, possibly, other witnesses. They may request documents to learn as much as they can about your child's best interests.

Trial/final hearing

If you and the other parent have reached agreement, your final hearing will only be about 15 minutes. The judge will review your financial declarations and will approve your parenting plan if it's in your child's best interests and is otherwise legal. Once the order is signed and filed, you have to follow it (until you receive any future court orders that change it).

If you haven't reached agreement, your final hearing is your trial. In the weeks before trial, both of you will formally submit your exhibits (evidence) and prepare your witnesses. The guardian ad litem will also submit their report.

You may get the judge's order immediately at the end of your trial, or, if the judge needs to think about it for a while, you'll receive it in the mail. If neither spouse appeals the divorce decree, it automatically becomes final 30 days after the judge signs and files it.

Enforcing an order

If one parent isn't following a temporary or permanent order, the other can file for contempt. This is common in financial disputes as well as in disputes over parenting time or the well-being of the child. The parent who petitions tries to convince the judge that there was a clear violation of the order (not just a difference in interpretation).

If the judge agrees to a hearing, the accused parent must prove they did not violate the order or give a reason for their behavior (i.e., "show cause" for their actions). Otherwise, they can be fined, jailed or sentenced to community service. This might affect details of visitation, but it won't change the overall custody order.

Changing an order

To request a change to an order for custody, visitation or child support, you have to prove a substantial and material change in circumstances, e.g., a long-distance move.

Simply wishing you'd included more detail in your court order isn't a valid reason to ask to change the order. The court's main goal in limiting change requests is to give your child stability.

Throughout the custody process

During the custody process, you may need to create a visitation schedule, write a parenting plan, keep a log of interactions with the other parent, and more.

The Custody X Change online app enables you to do all of this in one place.

With customizable parenting time calendars, a parenting plan template, a digital journal and other tools, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Throughout your case, take advantage of our technology to stay on top of all the moving parts.