When can a child testify in South Carolina Family Court? When can a child’s input be included in South Carolina Family Court?

In rare occasion, children can sometimes be witnesses a in Family Court cases.  As a general rule, the child must be of sufficient age or awareness that his/her testimony will be believed.  In some cases, the Judge may agree to talk with a child in Chambers, but most Judges don’t — except in rare, extreme circumstances. Usually, the child’s position in a case is represented through a Guardian ad Litem, who is appointed to protect the child’s interests.

In South Carolina there are many factors to whether the child can speak in court. A child who is only 8 is not likely going to be called to testify, or if they are going testify, it will be  in camera with the Judge taking the testimony. If the child is a little older the child might be asked to testify in court, however, unlikely. Once a child is 14 or 15 the court is more likely to allow the child to testify, however, that is not always going to happen and an attorney will need to argue the case regarding facts and circumstances surrounding the case. Judges are not looking to have children in the courtroom unless they absolutely have to.

According to S.C. Code Ann. § 63-15-30 the court should consider the child’s preference, but it does not say that should be via testimony:

“In determining the best interests of the child, the court must consider the child’s reasonable preference for custody. The court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.”

There is extensive case law on this issue in South Carolina, including, Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114, 120-121 (2004) and Brown v. Brown, 362 S.C. 85, 606 S.E.2d 785, 790 (Ct.App. 2004). An attorney would be able to explain the case law and information pertaining to this case. 

IF YOU HAVE QUESTIONS OR ISSUES PERTAINING TO THIS TOPIC PLEASE CONTACT AN ATTORNEY. WE CAN BE CONTACTED AT NATALIE@THEPOWERSLEGALFIRM.COM OR AT 843.261.7025

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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

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“Excuse me whose parent are you?” How To Get Copies of Your Child’s School Records?

You show up to your child’s school hoping to get the information your ex is unreasonably withholding from you. You just need the information to help your child with homework, or to plan for the next parent-teacher conference. The secretary asks you over and over “whose parent are you?” “are you sure they go to school here?” or they say ” I don’t see you listed here for any child in our school…”

Has this happened to you? You attempt to get information about your child from their school and the school treats you like a complete stranger.

As the school year starts we see many parents having to re-enroll or enroll children in school which requires filling out new paperwork for the schools their children attend.

Often one parent will attempt to use access to the child at school or access to the child’s school information as a pawn in the game of child custody. All parents should be allowed access to information pertaining to their child in school. All parents should be allowed access to information pertaining to school meetings, events and other items. If an order of protection or a restraining order states a parents is not allowed to come near the child or the other parent this may be a different situation and you should speak to your attorney, or an attorney, prior to interfering with school.

BEST PRACTICE: School should be a neutral zone for the child to be able to learn, grow, make friends, play and be free from the stress any custody issues may have on the children. This means for BOTH parents, they should not be trying to have lunch with the child, they should not be trying to meet the child for breakfast and they should not be there to see the child get on the bus if they are not the custodial parent. Neither parent should use school time as parenting time.

However, this DOES NOT MEAN THAT A NON-CUSTODIAL PARENT IS NOT ALLOWED OT HAVE ACCESS TO INFORMATION PERTAINING TO THEIR CHILD.

A FEW GUIDELINES FOR WHAT TO DO AND WHAT NOT TO DO REGARDING SCHOOL INFORMATION DEPENDING ON YOUR SITUATION:

If you are the custodial parent, the one who has custody in a court order, here are a few pieces of advice to help you avoid contempt charges.

1. ALWAYS, ALWAYS, ALWAYS, list the other parent on all documents for doctors, schools, dentists, teams, and organizations your child is coming in contact with. If  the other parent is not listed you may face trouble with the Family Court. Judge’s often frown upon “leaving off” a parent or “forgetting” to list them. Even if you don’t have all the information you should list at least what information you have.  Simply stating you forgot, didn’t know their information, or didn’t think you had to list them is not going to be a good answer in family court. If there is a restriction on the other parent, such as they are not to pick up the child, then list it on the form but you must list them you cannot just leave people out.
2. NEVER EVER EVER, list a step- parent or grandparent in the place where the other parent should be listed. There is often a place on the forms to list a third person or additional person who can be contacted. That is where you need to list your spouse and/or grandparents who you might want to include on these forms. You should never substitute your spouse or a step-parent for the biological parent of the child as this is highly frowned upon by the courts.
3. BEST PRACTICE TIP: The best practice you can have is to provide the school, health provider or organization with  a copy of the Order which is signed by a judge and indicate where it shows what rights each person has. This will help to avoid any issues which may present themselves.  This is not required but helps you to avoid future problems.

If you are NOT the custodial parent, the one who does not have primary custody in a court order, here are a few pieces of advice to help you avoid issues with schools, health care providers and organizations and avoid frustration on your party.

1. BEST PRACTICE: it is the best practice for you to proactively go to the school, healthcare provider, or organization and provide them with a copy of the court order, introduce yourself and provide them with your current and accurate information. Although this is not always possible, it can show that you are an involved parent, you care and help avoid any issues when the other parent attempts to circumvent your ability to be involved in your child’s live.
2. NEVER, EVER, EVER: Expect the other parent to provide your information to anyone. Generally speaking, if you have not gotten along or had issues in the past, they are likely to provide no information at all about you, or even worse provide wrong or misleading information that will eventually cause you more hassle to fix. If  ex could work with you on this, you probably wouldn’t be looking at this post.
3. TRY NOT TO: Discuss issues regarding the school records in front of the children or with your ex at all if possible. If you and your ex cannot get along regarding the school records it is best not to speak to them about it. If conversation is necessary you should utilize email to keep a record of what is said.
4. ALWAYS, ALWAYS, ALWAYS, request the school send an additional copy of everything pertaining to the child to you. You have rights detailed below and may not be able to get a copy of EVERYTHING but you can ask the school to send you an extra copy or an extra folder. The school may charge for this or may only send the bare minimum but at least this is a start and you are not out in the cold any more.
5. GOOD IDEAS:

• Contact your child’s teacher directly to discuss when report cards and other important information will be distributed so that you know to request copies. (You may also be able to find this information on a school web site.)
• If your child’s school provides online access for parents, ask for an appropriate access code so that you can stay informed on a regular basis without having to bother the school officials on a regular basis.
• Double check your child’s teacher has your email address and phone number, and update it when there are changes.
• Make sure that your child’s teacher knows that you would like to be notified directly of any changes in your child’s academic performance or behavior, and invited to any school meetings or events involving your student.

A sample letter requesting inspection of a child’s record can be found on my website via this link.

SO WHAT EXACTLY ARE YOUR RIGHTS AS THE NON-CUSTODIAL PARENT?

The Family Educational Rights and Privacy Act (FERPA)gives parents the right to access their child’s records, report cards, standardized test scores, and other pertinent material.  This does not mean you have access to everything that happens at school. For example, there is no access for non-custodial parents to the school lunch menu, field trip notices, and school photos. A school does not have to allow you take your child’s file with you anywhere to copy it, or “check out”  and leave with your child’s record. Also, the schools will generally not automatically mail everything to the parents, or will charge for mailing items. The school may charge for copies they need to make of things they send you, however, not always.  You have rights to your student’s records and should assert those rights. The school has plenty to worry about, and your access to records is not one of the things they are going to concern themselves with unless you let them know it is important to you.

On top of what rights you have as a natural parent, FERPA has carved out certain rights for Non-custodial parents in The Rights of Noncustodial Parents in the Family Educational Rights and Privacy Act of 1974.  Many schools, especially locally, will work to make sure non-custodial parents have access to information, above and beyond what is provided for in FERPA, if they make their desire to be included known to the school officials.

Note: FERPA does not give rights to a parent whose rights have been terminated by a court order.  Once your rights are terminated, you can no longer access the child’s records.

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

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