Who gets Custody of the Children?

 

A contest over child custody is a very difficult experience for all concerned. Therefore, during the settlement negotiations, each party should look honestly at his or her resources and needs in order to determine who could be the better custodial parent. Because neither parent has a superior legal right over the other, the best interest of the children controls the granting of custody. If a custody contest does go to court, the Judge must decide what those best interests are. Child custody can be reviewed by a Family Court any time there is a substantial change of circumstances since the last court decision.

The standard against which the Family Court must weigh the evidence on the issue of custody is the welfare, or best interest of the child. Custody is not granted to the parent as a reward or withheld as punishment.

In making custody decisions the “totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.” Wheeler v. Gill, 413 S.E.2d 860 (Ct. App.1992).

Once the Family Court gains jurisdiction to determine custody, it can retain jurisdiction to modify the decree even though the parent having custody and the child move from the state.

The Court may, as in the case of McAlister v. Patterson, 299 S.E.2d 322 (1982), require a parent live in a particular area, but that authority should be used sparingly. VanName v. VanName, 419 S.E.2d 373, (Ct. App. 1992).

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem.