When it comes to family law cases, many people never want to return to Family Court after surviving their divorce case, but there are times, especially when children are involved, that it may be unavoidable for one reason or another. One of the most common issues that comes up in my client consultations is how to determine when it’s time to return to court seeking a modification to an existing child custody order.

In South Carolina, there are certain criteria that must be met before the court will consider making changes to an existing child custody order. Some parents are surprised to learn this, but if you think about it, it makes a lot of sense. The Family Court, in general, wants to ensure stability as much as possible in a child’s life, since stability is one of the tenets so important to healthy child development. If the court didn’t set standards or parameters for when and how it will consider changing child custody orders, some parents would never stop litigating, which would more than likely have severe negative effects on their child’s health and well-being.

If you are considering whether you should pursue modifying your current child custody order, let’s take a closer look at how custody modifications work in this state.


Grounds for Modification

The South Carolina Code of Laws states that any modification to an existing child custody agreement must be based on a “substantial change of circumstances” which has occurred since the date of the original order (or last modification). Just as there are a million variables that affect all other family court cases, this “substantial change” could mean any number of things. The burden of the petitioning parent (the parent seeking the modification) will always be, “how substantially is this change affecting the best interests of the child.” That’s because the simple fact there has been a change, doesn’t always mean that change is bad or negatively affecting the child’s overall well-being.

For example, one or both parents may have changed jobs that allow them to have more free time or make a lot more money to better support the child. While that might be grounds to adjust the child support calculations, it doesn’t necessarily mean that a complete modification of the child custody order (sole vs. joint custody, the parenting time schedule, etc.) must be changed. Some examples we see most often in modification cases include, but are certainly not limited to, changes in the parents’ living situations (for example, if one parent wants to relocate with the child out of state), negative changes in either parent’s employment status, or evidence that one or both parents are not following through on their commitments within the current custody order or agreement.

If you file a custody modification action and you cannot initially prove the change you allege is negatively affecting the child, or will negatively affect the child in the future, it’s highly unlikely a judge will allow your case to move forward. In the case your action is allowed to progress, if you still fail to meet the burden under the law, you will likely not be successful in anything other than being ordered to pay the other parent’s legal fees and court costs.


When You Should Consider Requesting a Modification

If you believe that your current child custody arrangement no longer serves the best interests of your children, you may want to consider requesting a modification from the court. This step should not be taken lightly, and it is important to note that the court will always look to what’s best for the children when deciding on any modification.

It’s also a good idea to consider the potential impact the change could have on your relationship with your co-parent. No parent likes to go to court, and certainly, when you’re served with a new custody action, it will completely disrupt the next year or more of your life, which may make it even more difficult to properly co-parent and keep the negative feelings at bay.

However, there are times when it’s just unavoidable. Here are some common situations that I’ve seen many times over the years, and which almost always lead to significant modifications of prior custody orders:

  • Parental Alienation
  • Educational Neglect or Chronic Truancy
  • Medical Neglect
  • Relocation
  • Remarriage to an Abusive or Dangerous Stepparent
  • Child is Living in Dangerous or Hazardous Living Conditions
  • Child Not Being Properly Supervised
  • Substance Abuse by Parent
  • Substance Abuse by Child
  • Criminal Activity, Arrests, or Active Investigations Involving a Parent

While this list is certainly not all-inclusive, it should provide a good overview of how high the bar is typically set for modifying a child custody order that has already been approved by a family court judge. Generally speaking, most of the above scenarios will follow a typical litigation timeline, but if there’s evidence of a clear and immediate danger to the child or some heightened risk of irreversible harm, it may be necessary to seek a modification on an emergency or expedited basis to ensure the family court will address the situation on a temporary basis sooner rather than later.

In any case, it’s recommended that you consult with an experienced family law attorney as soon as possible and before taking any action. These are never do-it-yourself cases, as they often require lots of evidence to be collected, organized, and presented properly to the Court for consideration. Many cases also require hiring experts to help present your concerns and the long-term effects of inaction to the Court to win your case.

However, you must keep in mind that even if you meet the requirements stated above, there is still no guarantee that your request will be approved by a judge. Every family court judge is different and even across the state, every county may have different ways of analyzing what’s truly best for children based on the daily life and experiences of people in that part of that state. Therefore, it’s critically important to speak with an experienced family law attorney who can advise you on possible next steps and represent your interests in court considering the current trends and beliefs.


Final Thoughts

Modifying an existing child custody order or agreement can be tricky business – and it’s important to make sure all necessary criteria required by the relevant statutes are met before moving forward with filing your Complaint for Modification with the Family Court. If you live in South Carolina and believe modifications need to be made to your current child custody arrangement, we strongly suggest speaking with a qualified family law attorney who can help guide you through this process. With their experience and skilled guidance, you will increase your chances of having your concerns heard and addressed by the court which will allow everyone involved to move forward with peace of mind knowing your children’s best interests are properly met.

If you’re in South Carolina, you can reach out to Ben Stevens today to discuss your specific situation. If you are not, Mr. Stevens is happy to provide a referral to a well-qualified attorney located in your state. He is a Fellow in the prestigious American Academy of Matrimonial Lawyers and the International Academy of Family Lawyers, and he is a Board-Certified Family Trial Advocate by the National Board of Trial Advocacy. He has represented parents in child custody and other Family Court cases across South Carolina for well over twenty-five years. If you or someone you know is facing a child custody or visitation case, contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to request a consultation.


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