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Types of Custody and Vistation : Know your options prior to making an agreement

As a divorce begins it is smart to begin considering the types of legal custody which may apply to your situation. There are many different terms you may hear. Below I will explain a few different types of custody to help you understand what you might want to consider. All types are not available in all situations and a unique type of custody and visitation arrangement might work for your situation.

Remember that you can get an agreement regarding custody which gives an arrangement that the judge might not have otherwise been permitted to order under the law. Therefore, it is important to see if you can reach an agreement with the other parent regarding custody and visitation if at all possible.

Legal Custody:  In plain terms, legal custody refers to which parent has the primary parenting duties and responsibilities for the child(ren) involved.  In South Carolina, the judges generally prefer one parent, usually the primary parent, be the person with primary decision making authority for Major Decisions. Examples of major decisions include: education/where the kids go to school, the type of education (public school, Montessori, catholic etc), religion, and major and non-emergency medical decisions.

Some options to consider for custody are:

Sole Legal Custody:  This means that one parent has custody of the child, solely, and the other parent does not have visitation or custodial periods. Sole custody would mean one parent would have all the decision making authority for all aspects of the child’s life. This does not necessarily mean the other parent’s rights have been terminated.

Joint legal custody: Joint custody contemplates some arrangement where both parents share the responsibility of custody for the child. One parent is generally designated as the primary custodian and the other would be secondary. Often the guidelines for join legal custody are controlled by a court order. The standard, in South Carolina, and many states is that you are to co-parent and make an attempt to discuss the major decisions regarding the child, if a decision cannot be reached often time an order will designate one parent as the final decision maker.

Shared legal custody: Shared legal custody contemplates the parties splitting the time between each parent equally. This means the parents will often split the day to day decision making for the child and have major decisions to be made as co-parents with one person being designated as a final decision maker after good faith discussions have occurred. If you and the other parent do not get a long this is NOT a good option for you and your children. NOTE: IF YOU FEEL YOUR SITUATION LENDS ITSELF TO A SHARED CUSTODY SITUATION CONTACT AN ATTORNEY TO DISCUSS THE SITUATION IN DEPTH AS JUDGES IN SOUTH CAROLINA ARE NOT PERMITTED UNDER THE SOUTH CAROLINA CODE OF LAWS TO ORDER SHARED CUSTODY EXCEPT WHERE THERE IS A SHOWING OF CERTAIN ELEMENTS WHICH CAN CONSTITUTE EXCEPTIONAL CIRCUMSTANCES.

Physical Custody is something separate form legal custody in some circumstances. Physical custody is in regards to who has actual physical custody at what time. While some people refer to “sole Physical Custody” or “joint physical custody” this is a misleading idea. Courts do not order a separate physical custody order after ordering legal custody.  A situation could occur where someone has Joint Custody of the child and the mother has physical custody on the week days and dad has physical custody on the weekends. This is no different than saying dad has visitation on the weekends.  South Carolina does not generally use the terms physical custody for children, they most often refer to primary parent / custodial and secondary parent / custodian.

Some states, not South Carolina, that I am aware of, are allow something called Nestting Custody. The idea is the children stay in one central location and the parents rotate in and out of the children’s residence on a certain schedule. For example, dad may reside at the children’s home Monday evening through Thursday, and mom may reside there from Thursday evening through Monday morning. If you recall the famous couple from the TLC Show Jon & Kate Plus 8, they operated on a schedule like this when they first separated and there were 8 children. They had just built a mansion and the children stayed in the mansion. I have not had occasion to recommend this to any client. This is often short term or one parent is going in an out of the other parents primary residence. I do not see this a prudent for any situation where there is a contested custody or divorce ongoing. IF YOU THINK THIS APPLIES TO YOU PLEASE CONTACT AN ATTORNEY TO DISCUSS THIS MORE IN DEPTH.

Visitation is a form of custody. Visitation allows a parent who does not have custody full time to see the child on a regular basis or at least some sort of schedule so that they can form a regular parent-child relationship with their child. There are many types of visitation. You should not agree to any type of visitation, specifically supervised visitation, without first consulting a lawyer about what you should be entitled at a minimum. South Carolina does not have a statutory minimum visitation; however most judges will at least allow a parent who is local to have every other weekend, Wednesday evening, some holiday time, and two weeks in the summer as a standard visitation schedule. There are generally two types of visitation which are ordered. NOTE: VISITATION AND CHILD SUPPORT ARE TWO SEPARATE ISSUES- IF THE COURT THINKS YOU ARE SEEKING EXTRA VISITATION ONLY TO GET YOUR CHILD SUPPORT REDUCED YOU WILL NOT FAIR WELL WITH THE COURT.

Supervised visitation: Means that another responsible adult must be present for the duration of the visitation. The non-custodial parent may be able to select an individual to serve as the supervisor, however in some cases, the other parent will be allowed to choose the supervisor Often times, unless the supervisor is agreeing to supervise for free, there will be a fee involved for the supervision. It is often hard to find a supervisor for visitation; two local companies are listed on the resources section of my webpage, via this link.

Unsupervised Visitation: The most common type of visitation is unsupervised visitation, especially in private cases. Parents are permitted to visit with their children just as any other parent does. There may some restrictions placed on visitation such as no out of state visitation or no visitation at the a certain location, however this does not rise to the level of supervised visitation.

A third type of visitation which is become standard in almost every court order I see is virtual or phone visitation.

Virtual visitation: Virtual visitation, must be ordered by the court, and takes place over the internet or cellular signal. Methods of communication may include video chatting, instant messaging, and email. This may use Skype® , FaceTime®, or other real time video chat software to allow the children and the non-custodial parent time with the children.  This is often used for young children and parents who are far away.

Phone visitation: Phone visitation is very similar to Virtual Visitation, in that it occurs over a phone. Phone visitation may be ordered nightly for young children or on a regular basis for children who are attempting to adjust to a new situation. Phone visitation contemplates one parent calling the other and then the child and the non-custodial parent talking for a short time. This is not always the best form of visitation but allows communication. Phone visitation should not be done via speakerphone (or listened in on) unless indicated by the court, so that the child can develop a health parent-child relationship with the other parent.

 

If you have more questions about your rights or feel a school or another parent is unreasonably denying you the right to access your child’s information, contact an attorney. The Powers Legal Firm can be contacted via email at natalie@thepowerslegalfirm.com, via phone at 843.261.7025 or via our webpage at www.thepowerslegalfirm.com

Flat fee and Affordable Rates
Summerville’s Family Law and Custody Law Firm
 

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Wage withholding for child support SC Code 63-17-1420

Wage withholding for child support SC Code 63-17-1420

Have you recently found out that the parent of your child is withholding your wages for a child support order? Have you been on the arrearages roller coaster for years and want to have the child support owed to you paid through wage withholding but need more information? You have come to the right place.

Can my child support order be enforced through wage withholding? The answer is probably yes, but depends on the date your child support order was issued and the language of your order. Contact an attorney for specific questions. Generally, South Carolina laws that pertain to wage withholding depend on when the Order for child support was issued. The two years that matter are 1990 and 1994. Since most children born or subject to a child support order PRIOR to those years would no longer be under a child support order- it is almost safe to say ALL South Carolina child support Orders are subject to wage withholding. However to be clear the law specifically states the following:

  1. All child support orders done DSS / Child Support Agency issued or modified after October 31, 1990 are subject to immediate wage withholding. AND
  2. Child support orders, not made through the Child Support Enforcement Agency that were issued or modified after January 3, 1994 are subject to immediate wage withholding.

My child support order is paid through the court is that the same as wage withholding? NO. Immediate wage withholding is not automatic wage withholding. Depending on the language of your order, wage withholding may not be allowed at all. Also, your order may indicate that the payments be paid through the court. Often Family Court Judges like to see a few missed payments before they will require wage withholding. Support is often paid through the court or directly to a receiving party and after payments are missed the receiving party can take steps, discussed below, to enact wage withholding.

What if I have an out of state Child Support Order, can that be enforced through South Carolina Wage Withholing? Yes, the Uniform Interstate Family Support Act requires all employers honor income withholding orders from all other states. Payments should be sent to the registry or court indicated on the notice sent by that state. An attorney can help you understand this complicated situation.

How can I avoid wage withholding? Depending on the circumstances, almost any person receiving support can have wage withholding put into place if they do the paperwork correctly. South Carolina has allowed two circumstances where the paying party can protect themselves from surprise wage withholding.

  1. If one of the parties demonstrates and the court finds that there is good cause not to require immediate income withholding; or
  2. A written agreement is reached between both parties which provides for an alternative arrangement.

Does the support have to be in arrears before it can be put into wage withholding? This depends on who is enforcing the order.

1. If the order is an order which is enforced by the Department of Social Services- DSS- or The Child Support Enforcement Agency- or was ordered by one of those entities, then the order DOES NOT NEED TO BE IN ARREARS to be subject to wage withholding. A receiving party can go at any time and request the support be withheld from the paying party’s wages.

2. If the order is a private order or one NOT through DSS/ Child Support Enforcement, AND the order is not paid through the court, then: The person who owes the support must be found delinquent in an amount equal to three months of support or more, usually through a Rule to Show Cause. AND The Clerk must order the wages enrolled for wage withholding immediately.

NOTE: Even if the person paying is completely caught up at the time of the hearing on any arrearages, wage withholding may still be ordered depending on when the payments were made.

 What does wage withholding mean for employers? South Carolina Code requires employers to comply with wage withholding requests which come through the Clerk of Courts from any of the 46 counties or from the Child Support Enforcement Agency from this or any other state. The employer must determine the conversion of the order to comply with the particular employer’s pay schedule for the employee subject to withholding as well and other requirements. If you are an employer, or work for an employer, and receive and request for wage withholding, contact an attorney as soon as possible to discuss how to handle this situation to avoid any liability on your part for failure to comply.

What part of my income can be withheld through child support? Are my bonuses subject to withholding?

Income for this purpose including regular pay, any form of payment to an individual regardless of source including, but not limited to, wages, salary, commission, bonuses, compensation as an independent contractor, workers’ compensation, disability, annuity and retirement benefits, payments made pursuant to a retirement program, interest, and any other payments made by a person or an agency or department of the federal, state, or local government.

INCOME EXCLUDES:Public assistance payments and amounts required by law to be withheld, including, but not limited to, federal, state, and local taxes, social security and other retirement deductions, and disability contributions; NOTE: other than creditor claims are secondary to your child support being withheld- your child support will take primary importance and be paid out first.

What if the wage withholding causes me to lose most of my income? What is there is more than one child support wage withholding order for me? What if my child support is greater than my paycheck?

You should still be able to earn enough money to live with the amount that is determined to be appropriate allowing you to still retain 50% of your net disposable income after they deduct all withholdings.  South Carolina Laws as well as the Federal Laws require withholdings for child support to be first in line, and take priority over ALL other income withholdings. Employers must withhold the entire amount of child support indicated by the notice given to them UNLESS  the amount on the notice would be greater than 50 percent of the employee’s net disposable income. This can be very complicated but the notice should explain how to calculate all withholding and how the net disposable income is determine.

If there are multiple orders, an employer must make sure that all orders are complied with. Current ongoing support orders shall be complied with BEFORE arrearages are dealt with through withholding.

How is an order of withholding be terminated or suspended?
1. The Clerk of courts may terminate or suspend the order if they cannot locate the person who is to be paid. Once that person is able to be located or provides a new address the withholding would restart after the person paying is given notice.
2. The person paying may petition the court to terminate the withholding but they have to have one of the following reasons and a judge must grant the termination of the withholding:

– There is no longer a current order for support AND all arrearages are paid OR
– The person paying meets the requirements for some alternate arrangement AND withholding has not been terminated previously and then later restarted.

NOTE: IT IS YOUR JOB TO TELL THE COURT/ YOUR JOB THAT YOUR CHILD IS 18 OR YOU HAVE FINISHED PAYING YOUR ARREARAGE OR THEY WILL CONTINUE THE WITHHOLDING AND YOU WILL NOT GET A REFUND.

Forms  for DSS actions ONLY can be found at https://dss.sc.gov/content/library/forms/files/27126.pdf

FOR MORE INFORMATION CONTACT THE POWERS LEGAL FIRM, LLC FOR A CONSULTATION 843.261.7025

 
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Posted by on August 21, 2013 in Uncategorized

 

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South Carolina Pet Trust, Putting your Pet in Your Will

Are you concerned about your dog, cat, parrot, turtles, or other pet when you leave this earth?

South Carolina law provides for the welfare of your pets or animals even after you have left this earth. Although you may not be here to take care of your pets you can appoint someone, or ask the court to appoint someone, to care for your pets. You can provide for this in your will. If you do not make a will, probate court will decide what happens to your assets. Generally the probate court will not make a pet trust for your pets or care for your pets in any way if you die without a will. Your friends or family would have to willingly take up caring for your pet, possibly adopt them. If no one is here to care for your pet they may end up in the custody of an animal shelter.

However, no matter how young or old, you can always make a will that will provide for your pets. South Carolina law provides that you can put language in your will to provide for your pets, through what is commonly known as a pet trust. This would require your will allowing for your personal representative to set aside a portion of your estate in the form of a trust t care for your pet. A trust is money or land held for the benefit of another person. In this case you would be putting aside money for the benefit of your pet. This money would be controlled by someone who would be the administrator of the trust and would be given to whoever was caring for the animal for the animals benefit.

If you are concerned that someone might mistreat your pets after you have passed away, the South Carolina law provides that ANY person who is concerned for welfare of the animal can petition the Probate Court to appoint or remove someone to care for your pet.

The S.C. Annotated Code states that the pets do not have to be alive at the time the trust is created. The law even provides for your pets little ones if they are pregnant. A pet trust, depending on the language in your will, will stay in effect until the last pet dies that was either in gestation or alive at the time you passed.

For more information on how to set up a pet trust so that your pets are cared for in the event something were to happen to you please contact and attorney who has knowledge of this area of law. We have several attorneys at our firm who would love to help discuss your options with you.

 

Visit our webpage at http://www.thepowerslegalfirm.com for more information on how to contact us. 

 

 
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Posted by on August 17, 2013 in Uncategorized

 

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Welcome to our Blog!

Welcome! come back often to hear about the many new things that we have learned and the interesting laws that are shaping the world around you. Look for our first substantive (Definition: Having a firm basis in reality and therefore important, meaningful, or considerable) post within the next week or so.

 
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Posted by on August 29, 2012 in Uncategorized