Non-Custodial Parent Rights in South Carolina July 2010

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1 Non-Custodial Parent Rights in South Carolina July 2010 The legal information in this publication is designed to help you learn about the laws that apply when you have a child and you are not married to that child s other parent. To make this brochure easier to read, we will sometimes use the abbreviations NCP for non-custodial parent and CP for custodial parent. Determining Paternity and Custody What is paternity? Paternity means fatherhood of a child. When a man establishes paternity, he provides his child with certain rights and privileges, including: (1) the emotional benefits of knowing who his/her father is; (2) legal documentation of who his/her father is; (3) emotional and financial support; (4) access to family medical records; (5) inheritance protections; (6) veterans and Social Security benefits and; (7) medical and life insurance. If the parents of the child were not married to each when the mother became pregnant or at the time of the child s birth, then paternity needs to be established. How is paternity determined if a child is born to a woman who is not married? Paternity can be shown through a Paternity Acknowledgment Affidavit (PAA), which is signed under oath. Parents can sign the PAA at the hospital or medical clinic immediately after the birth of the child. Parents can also sign it at the Vital Records Office of the South Carolina Department of Health and Environmental Control in Columbia or the county health department in the county where the child was born. Neither parent should sign the PAA, if they are unsure about paternity. Instead they should have a paternity test, which is sometimes called a DNA or genetic test. You will probably have to pay for this test. Does putting a father s name on the birth certificate or giving the child the father s last name matter in that situation? Yes, but unmarried parents should also take additional steps. Parents should complete a PAA, because listing the father on the birth certificate does not create legal rights such as the right to custody. It can help later in formal court proceedings, though. If parents do not marry after the child is born, a court hearing must take place to determine legal rights to the child. Taking these actions can also help the mother collect social security or other benefits if the father should die. How is paternity determined if a child is born to parents who are married? The law says that the husband of the mother will be treated as the legal father in almost all situations if the child is born during the marriage. 1

2 I heard about a Responsible Father Registry where men have to register as the father or possible father of a child. What is this registry? The Responsible Father Registry helps men protect their rights. The Responsible Father Registry gives a man, who has fathered or thinks he has fathered a child with a woman he is not married to, the right to be notified when an adoption or a termination of parental rights action occurs. It is not used for anything else, like enforcing child support. Attorneys check the registry before filing actions for adoptions and termination of parental rights cases. Men, who register before the adoption or termination of parental rights action occur, gain the right to receive notice of these court proceedings. Men can register, for free, before or after the birth of the child at https://ssl.sc.gov/dssfatherregistry/fatherreg/regindex.aspx. If a man does not register then he will not receive notice of the adoption unless he is: A person adjudicated by a court in this State to be the father of the child; A person who is recorded on the child's birth certificate as the child's father; A person who is openly living with the child or the child's mother, or both, at the time the proceeding is initiated and who is holding himself out to be the child's father; A person who has been identified as the child's father by the mother in a sworn, written statement; and a person whom the family court finds to be mentally incapable of giving consent or relinquishment for the purpose of adoption A man who does not register will not receive notice of termination of parental rights actions unless he is: A person adjudicated by a court in this State to be the father of the child; A person who is recorded on the child's birth certificate as the child's father; A person who is openly living with the child or the child's mother, or both, at the time the proceeding is initiated and who is holding himself out to be the child's father; and A person who has been identified as the child's father by the mother in a sworn, written statement. Any man who is not sure about fitting into these categories should register to make sure his rights are protected. To find out more about the Responsible Father Registry go to https://dss.sc.gov/content/customers/fr/index.aspx. What is custody? Custody is a legal term referring to the right of a person to make decisions about the care and welfare of a child (for example, decisions about education, health care and religious training). The parent with custody is often called the "custodial parent." In many cases, the child resides with the custodial parent (CP) most of the time. What does it mean to be a non-custodial parent (NCP)? 2

3 You are not the parent with whom the child lives. However, as a NCP, you still have certain legal rights such as visitation and the right to help make decisions about your child. You must take legal steps to establish you are the child s parent to ensure that you have equal rights to your child. What is the difference between physical and legal custody? Physical custody indicates where a child lives the majority of the time while legal custody includes the right to make major decisions affecting the best interests of a minor child, including but not limited to medical, religious, and educational decisions. How is custody determined if a child is born to a woman who is not married? When a child is born to an unmarried woman, the mother of the child has legal and physical custody of that child automatically. She does not need a court order to give her custody. What type of visitation rights can a non-custodial parent (NCP) expect? Visitation is the right of the NCP to spend time with the child. Visitation varies with the facts of each case. Parents' work schedules, care-giving history, parent/child preferences, school locations, safety and, of course, the court's determination of the child's best interests are some factors that decide the visitation schedule. The court may order "reasonable" visitation, leaving it to the parties to work out the details, or the judge may order specific times for visitation. "Reasonable" visitation allows a parent to see the child at reasonable times under reasonable conditions, after the CP receives adequate notice. What is the difference for a non-custodial parent between having joint custody or just visitation rights? Joint or secondary custody means that more than one person may have decision-making authority for a child. Typically, the primary custodian has final decision making authority that can override the NCP s wishes. However, joint custody does give a NCP more parental involvement. It is very important that the terms of custody and visitation be in writing. An attorney may need to create the agreement between the two parents. Having a written agreement can allow both parents to have information about schooling and other activities, as well as medical appointments and care. What happens if a non-custodial parent does not return the child to the custodial parent as planned or written in the court order? All parents should follow court orders. If a NCP keeps a child longer than the court order allows, the CP has the right to go to court to have the order enforced. The NCP could be subject to contempt of court sanctions including fines and jail time for disobeying a court order. If there is no court order, then the parent should call the police and ask for assistance. Even parents with a court order should contact law enforcement immediately if the child is not returned home when they are supposed to be. A parent with a court order should provide a copy of it to the police to assist them in getting the child back. What happens if the Department of Social Services (DSS) initiates a case against the custodial parent? As the non-custodial parent, do I have any rights? 3

4 Yes, you have rights. If DSS takes the child from the CP because of allegations of abuse, neglect, or abandonment, DSS must tell you where they have placed your child, unless DSS is also accusing you of mistreatment. Get a lawyer if DSS initiates any actions against you or the CP. A lawyer can help you protect your rights to your child. If you cannot afford a lawyer the Family Court must appoint one for you. Act immediately if you get legal documents from Family Court. What happens if the Department of Social Services (DSS) initiates a child support case against me, the non-custodial parent? DSS will seek a child support amount that is based on the Child Support Guidelines. If you have already been ordered to pay child support and are falling behind, then you might need to go to court and ask for the payments to be reduced. You will probably need the assistance of an attorney for this court appearance. Or you might want to attend one of the free trainings South Carolina Legal Services offers, that teaches you how to represent yourself on this matter. For more information about this, see the Resources section. Custody and Paternity Issues Relating to Third Parties General Information: When dealing with third parties, both parents should provide all information necessary to serve the child s needs in the best way possible. For example, both parents names should be listed on the child s school and health records. Schools and medical offices should not deny information to a NCP, as the law says that a NCP has equal access rights. However, if there is a conflict between the parents, the school or medical office will likely ask for some documentation from the NCP. Both parents should have access to any records relating to the child. Whenever possible, both parents should know about and be present at parent-teacher conferences; school, sporting and religious events, or any other activities the child participates in. A parent's presence shows love, concern and support for the child. Do non-custodial parents have to prove to others that they have these rights? The NCP has the right to make important decisions affecting the child, including consent to a marriage, enlistment in the armed forces, and major non-emergency medical and surgical treatment. These rights need to be written in a court order though or otherwise the NCP may not have any authority. The NCP also has the obligation to provide financial support or other funds for the care of the child, and other duties the court orders. Information for Schools: Can a non-custodial parent enroll a child in school? Yes, if the NCP is a resident of the school district and the child is a resident of the district or otherwise meets requirements for enrollment. In South Carolina, there is a legal document called a school affidavit that a NCP can use to enroll the child in school, without getting an order of custody from the court. The school may ask for records that show (1) a proper withdrawal from the previous school or (2) the CP knows about the enrollment. Can a non-custodial parent pick the child up from school? 4

5 Yes, unless there is a court order stating otherwise. It is best to have it written in the court order that the NCP can pick the child up school. Also, to make the process easier, the CP should tell the school that the NCP will be picking the child up from school. Can a non-custodial parent sign school forms such as permission slips for the child? Yes, unless a court order says otherwise. It is best to have the permission to do this written in a court order. Can a non-custodial parent attend parent conferences with the child? Yes, unless a court order says otherwise. Can a non-custodial parent request and receive school records? Yes. Both parents have equal access to all records unless a court order states otherwise. Can a non-custodial parent attend school events such as assemblies or sporting events? Yes. The school will assume that both parents have the right to see a child unless the school has been provided a court order or other information that says otherwise. A court order from a domestic violence proceeding may also limit or prevent a parent from having access to a child and that child s records. Information for Medical Providers: Can a non-custodial parent gain access to their child s medical records? Yes, unless a court order states otherwise. Other Non-custodial Parent Rights: Can a non-custodial parent gain access to their child's South Carolina Department of Juvenile Justice (SCDJJ) records? Non-custodial parents have access to educational and medical records in their child's SCDJJ files, unless a court order states otherwise. NCPs must obtain a court order in order to access all other records in their child's SCDJJ files. Upon their written request, a CP has access to all records contained in their child's SCDJJ file. Can a non-custodial parent visit their child who has been committed to a SCDJJ facility? Both parents have equal rights to visit their child while he/she is committed to a SCDJJ facility, unless a court order states otherwise. Can a non-custodial parent take their child as a tax deduction? You may or may not be able to claim the child as a dependent on your taxes. If you are divorced or separated it will depend on custody. Usually the parent with the most custody during a calendar year claims the dependency. But sometimes the court can say who gets the claim. Or one parent can give written permission for the other parent to make the claim. The parent, who currently claims 5

6 the child on their taxes, has to fill out a special form with the IRS, in order to let the other parent take the tax deduction. RESOURCES You may want to consider having legal counsel help you with some of these matters. If you are low-income and meet certain criteria for services, then South Carolina Legal Services may be able to help you. You have to call their intake line first, LATIS, to be screened for services. That number is If South Carolina Legal Services (SCLS) cannot represent you, they still may be able to help you learn how to represent yourself at their legal clinics. The legal clinics are free, but you have to be screened by LATIS to be able to attend. This is required to make sure there are no conflicts with current clients. For example, if your wife has filed for divorce and SCLS is representing her, you would not be able to attend the free legal clinic. The South Carolina Bar also sponsors free legal clinics that you might find helpful. The SC Bar keeps a list of free legal clinics here -. There is also the Lawyer Referral Service. Lawyers on this list will meet with you initially for 30 minutes to discuss your case. The lawyer will tell you your options and chances of succeeding on your case. This consultation costs $ If you wish to continue working with this lawyer, you can work out a fee arrangement with him to represent you. You can find out more about the Lawyer Referral Service at this link. People who are active duty military may be able to receive help from LAMP. LAMP is the South Carolina Bar s program called Legal Assistance for Military Personal. They help service members with all sorts of legal matters for either free or a reduced cost. To find out more about LAMP, go here, If you decide to represent yourself in a divorce where the grounds are one year of continuous separation, then you can use the Self-Represented Litigant divorce packet. It is on the S.C. Judicial website at this link. If you are a Spanish speaker and want some basic information about the laws of South Carolina, Project Ayuda may be able to assist you. The volunteers who run Project Ayuda are fluent in Spanish and can answer your questions, or try to find a lawyer to assist you. Project Ayuda s number is (803)

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