Fathers' Rights in Legal Separation in South Carolina

Fathers’ Rights in Legal Separation in South Carolina


Fathers’ rights are a topic of confusion for many parents involved in separation and divorce in South Carolina.  I frequently meet with recently separated or soon-to-be separated fathers and mothers who mistakenly assume that the mother has total control over the children from the initial separation through finalization of the divorce. These folks also often assume that the family court will go into the divorce proceeding with a presumption that the mother should have full custody of the children and all decision-making rights. This is not what South Carolina law provides as to a father’s rights in divorce, however.

Until a court order is entered, both parents are legally on equal footing.

In South Carolina, generally speaking, the parents have equal rights to their children unless a court says otherwise. If the parents have separated and the children are living with the mother who refuses to allow the father visitation, the police will not help resolve this dispute. The refused father will need to file an action for a temporary order addressing custody and visitation (along with child support and numerous other issues related to the parents’ separation).

The same is true if the mother grants visitation to the father and the father refuses to give the children back. The police typically will not help when the mother calls and demands the return of her children. Absent unusual circumstances, the mother will need to seek court intervention.

This is the case when the father is the legal father, of course. Establishment of paternity for unwed fathers is an entirely different and complicated subject, and the subject of fathers’ rights in that context is beyond the scope of this post. (If you are interested in that subject, here is a good place to start: https://www.state.sc.us/dss/csed/patest.htm)

In short, until a court has made a decision and entered an order as to child custody and visitation, mothers and fathers generally have equal rights to their children.

Courts look to the child’s best interests in determining custody and visitation.

In determining whether one parent should have sole custody or primary custody, South Carolina family courts consider what is in “the child’s best interests.” The same standard applies in determining whether the other parent should have visitation, and to what extent.

Mothers and fathers enter the courtroom on a level playing field under South Carolina law. There is no bias or presumption in favor of either, despite what many believe about fathers’ rights in South Carolina.

Who is the primary caretaker is often critical.

In deciding custody and visitation, a key factor for the court may be who is the child’s primary caretaker. The court will typically want to maintain the status quo, and lean toward keeping the child with the primary caretaker. While many more fathers serve in this role than their fathers and grandfathers did, the reality is that the primary caretaker is still most often the mother. That leads to the reality that primary custody is most often placed with her.

This practical result is probably why so many fathers, and mothers, believe that fathers’ rights are more limited than mothers’ rights under South Carolina law. Again, though, fathers’ rights are equal to the mothers’ until a court order says otherwise.

And again, many fathers these days are the primary caretakers of their children. Further, even if the mother has been the primary caretaker, numerous other factors may convince the judge that the father should be awarded sole or primary custody. These include any positive or negative behavior by either parent, each parent’s financial, emotional and physical health, each party’s work schedule and availability to be home with the child, and the general environment of each parent’s home. This is not an exhaustive list, of course.

Speak to a lawyer early in the separation and divorce process.

Many fathers, and mothers, come to me after they have already made critical decisions that could impact their custody and visitation rights going forward. Fathers often enter into agreements under the false belief that they had no rights, or limited rights, only to find out later that they may have given away too much.  If you have questions about fathers’ rights in separation and divorce proceedings in South Carolina, speak to a lawyer as soon as possible.

Speaking to a lawyer early in the separation and divorce process is the best way to secure your rights as a father or mother. Child custody and visitation rights are typically the most important issues to address, but there are numerous others such as child support, property division (e.g., who gets the marital home during the separation?), and alimony.

If you are facing legal separation or are already involved in legal separation, call Reynolds H. Blankenship, Jr. at RHB Law Firm, LLC, (843) 805-4717, or email reynolds@rhblawfirm.com.

Reynolds H. Blankenship, Jr.

RHB Law Firm, LLC

(843) 805-4717



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