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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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Summerville’s Family Law and Custody Law Firm
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