Clients or potential clients frequently seek explanation of the the nomenclature that surrounds custody orders: “shared” “sole” “joint” “legal” “physical” “primary.”  These terms are ill-defined or undefined within South Carolina law and I cannot give clients clear answers to their questions.

When people are fighting over “child custody” they are really fighting over only two things: “time” (that is who gets to spend time when the child and when) and “control” (that is who gets to make what decisions regarding the child and how).  I have previously lectured and published on the need to define “joint legal custody” for agreements or orders that create a joint legal custody situation:  Joint Legal Custody: What Is It? Why Have It?

Unless defined, it is unclear whether terms  such as “shared custody,” “sole custody,” “joint custody,” “legal custody” or “physical custody” add anything meaningful to court orders.   Provisions in orders are meaningful in only two senses: 1) if someone can be subject to contempt for violation of that provision; 2) if that provision affects subsequent modifications actions.  These ill-defined terms, in and of themselves, cannot subject someone to contempt for their violation and to the extent that these added provisions affect subsequent modification actions they do so in a way that is so random and judge-dependant that to add them to the order is the equivalent of placing a land mine in the order.

One can easily draft an order in which the terms custody, joint, legal, shared, physical and sole are never used by simply describing the time each parent will spend with the child and how decisions will be made regarding the child.   If one is going to create a custody agreement that employs terms such as “shared custody,” “sole custody,” “joint custody,” “legal custody” or “physical custody” it is vital to clearly define the terms being used and what the parties mean by these terms.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Recent Blog Posts

De Facto Custodian rights are more valuable than Grandparent Rights

Given the phone calls I receive from prospective clients, it appears that many more folks are aware of the concept of grandparent rights

[ + ] Read More

Supreme Court reverses Court of Appeals determination that same-sex, common-law marriage could not exist prior to 2014

The November 10, 2021, Supreme Court opinion in Swicegood v. Thompson remedies the obvious error in the Court of Appeals decision in Swicegood

[ + ] Read More

Pitfalls in cooperating with DSS child abuse investigations

Parents routinely contact me when they are in the midst of a DSS investigation into their potential abuse or neglect of their child.

[ + ] Read More