How Will a Criminal Record Impact Child Custody and Visitation in South Carolina?

child custody and criminal background

During a divorce, child custody and visitation are important issues that must be resolved. These issues can emotionally-charged, and divorcing spouses often have serious disagreements about who should have the kids and/or how much time the non-custodial parent is allowed to spend with them. When parents are unable to agree on these issues, it is left to the courts to decide (based on the child’s best interests).

Types of Custody and Visitation Arrangements in South Carolina

Before discussing the impact of a criminal record on custody and visitation, it is important to understand the different types of custody. These include:

  • Legal Custody: This refers to which parent has the authority to make important decisions on behalf of the child, such as decisions in the areas of education, healthcare, religious upbringing, and extracurricular activities. Legal custody can be sole or joint. Sole legal custody means one parent has the exclusive right and responsibility to make these decisions, while joint legal custody means both parents have decision-making input. Often a parent is designated as primary for these purposes, meaning he or she would have ultimate decision-making authority in the event of a disagreement.  Joint legal custody works well if parents are able to communicate effectively and place the best interest of the child above their own preferences and wishes.
  • Physical Custody: This refers to which parent the child primarily lives with and what parenting time arrangement the parties share with the child. Physical custody can also be sole or joint. With sole physical custody, one parent has primary physical placement of the child, meaning the child spends the vast majority of nights with that parent. With joint physical custody, the child spends a more equal amount of nights with each parent. For example, the child could alternate weeks with each parent throughout the year, or visit with each one more frequently throughout the week.

When one parent has sole or joint primary physical custody, the other parent typically has visitation rights, and the visitation schedule is laid out in the parties’ order or agreement. Sole physical custody with no visitation rights or limited/supervised visitation for the non-custodial parent is rare, but this could happen if the non-custodial parent has a criminal record with continuing criminal or other troublesome issues.

How a Criminal Record May Impact Child Custody and Visitation

The South Carolina courts consider several factors to decide on child custody and visitation/parenting time for the non-custodial parent. The non-custodial parent’s character is definitely a factor, and any history of criminal charges and/or convictions will be looked at, especially violent crimes. For example, if there is a history of domestic violence or sexual abuse, the court may decide that the parent is unfit and/or poses a real danger to the child. In such cases, an abusive parent may only be granted supervised visitation or no visitation at all.

With supervised visitation, the parent is only allowed to visit the child if the visit is supervised by an authorized adult or agency. Other limitations may also be placed on visits with the child, including:

  • A prohibition on the use of alcohol or controlled substances by the parent during and 24 hours prior to the visit;
  • A prohibition on overnight visits;
  • Visitation only in the presence of a licensed counselor, especially to address issues like reunification, for example, after a prison sentence when there has been little or no contact between the parent and child for some time.

In the most extreme cases, a court may order the complete termination of parental rights if they find clear evidence of abuse and determine that doing so would be in the child’s best interest. Some possible reasons for termination of parental rights may include sexual assault of the child (or another child), felony assault resulting in severe bodily injury to the child or another child in the family, attempted murder of the child, and murder of the other parent or another child in the family.  If the noncustodial parent has been in prison for an extended period, his or her rights could also possibly be terminated if he or she goes longer than six months at a time without trying to contact or financially support the child.

Non-violent crimes are also looked at by the court, but they might not have as much impact on visitation rights, depending on the specifics of the crime. Some of the factors that may be considered by the court in deciding how important a criminal record is to child custody and visitation include:

  • How many criminal charges and/or convictions you have;
  • The type(s) of crime(s) you were charged and/or convicted of;
  • The severity of the crime(s) and the punishment you received;
  • How long it’s been since your last run-in with the law.

Contact an Experienced South Carolina Child Custody Lawyer

Criminal history is one of many factors considered by the court in determining child custody and visitation rights. A history of violent crimes is likely to significantly impact the case, especially if they are more recent, but non-violent crimes might not have as much bearing on the outcome. If criminal history is an issue in your case, it is important to be represented by a skilled family law attorney who knows how to effectively argue for your rights and interests, and the best interests of your child(ren).

At The Cate Law Firm, we have over five decades of combined experience representing clients for all types of family legal matters in South Carolina. With have extensive knowledge of this area of the law, and we are dedicated to providing strong legal representation for each client we serve. To schedule an initial consultation, call our Spartanburg office today at 864-585-4226, or you may send us a secure and confidential message through our web contact form.

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