South Carolina Code Ann. § 63-3-530(20) authorizes the family court “to award the custody of the children, during the term of any order of protection, to either spouse, or to any other proper person or institution.” (emphasis added). See also, Ex parte Morris, 367 S.C. 56, 624 S.E.2d 649, 652 (2006) (“While Custodian may not stand on precisely the same footing as a parent or close relative, it is apparent from a reading of various statutes touching on the issue that the Legislature contemplated nonrelatives often may play a crucial and important role in the life and well-being of a child, particularly when parents or relatives turn away from the child.”)
There are two situations in which non-parents get involved in custody disputes with parents. The first are situations in which the parent has physical possession of the child and the non-parent wishes to obtain custody. The second situation is when the non-parent has had physical possession of the child for a substantial period of time and either desires a court order affirming the physical custody or where the parent seeks return of the child.
In the first situation, the parent’s fitness absolutely determines custody. “Once the natural parent is deemed fit, the issue of custody is decided.” Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781, 782 (1985). If the natural parent has physical custody of a child and is fit, no non-parent may be awarded custody. If that natural parent is unfit, a non-parent can be awarded custody, assuming the other parent is either unfit or not seeking custody.
In the second situation, a non-parent is more likely to be awarded or to keep custody. The South Carolina Supreme Court has set up a four-part test, which is set forth in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989) (citations omitted):
