Do Fathers have Custody Rights when Parents Were Never Married

Question:My ex and I have two children, but were never married.  When we separated the kids lived with and stayed with me on the weekends or every other weekend depending on their schedule. No custody agreement had been made with the courts. She recently married and left the state to be with her new husband. She left the children with me.  Do I have rights and if so what do I need to do to take custody of my children?Answer:You certainly have rights, but since you were never married paternity must be established by the Court. You may be listed on the birth certificates for the children, but likely have few guaranteed rights since the children were born outside of marriage and you have not been to court to formalize any custody/visitation.  SC Code §63-17-20(B) states, "Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity."If you have been court ordered to pay child support you should have been adjudicated the father by the Court.  And, if you are on the birth certificate then you are presumed to be the father because of the acknowledgment of paternity that you executed to be listed on the birth certificate.  So, that would take care of the the paternity issue, but since your child was born outside of marriage it will require a court order to provide you with custodial or visitation rights.You will need to file an action seeking temporary and permanent custody of the children. The first step in that case will be a temporary hearing where you will ask the court to award you temporary custody of the children. Your ex must be served with notice of the motion and hearing time. These cases can be complex and difficult to navigate through the system, so I would encourage you to speak with a lawyer in your area to help you out.  Initial custody cases in South Carolina are decided by the Court determining what is in the best interest of the children and the court considers many factors when determining the best interest.  The South Carolina Code §63-15-240(B) sets forth those factors:

1. the temperament and developmental needs of the child;
2. the capacity and the disposition of the parents to understand and meet the needs of the child;
3. the preferences of each child;
4. the wishes of the parents as to custody;
5. the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
6. the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
7. the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
8. any effort by one parent to disparage the other parent in front of the child;
9. the ability of each parent to be actively involved in the life of the child;
10. the child's adjustment to his or her home, school, and community environments;
11. the stability of the child's existing and proposed residences;
12. the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
13. the child's cultural and spiritual background;
14. whether the child or a sibling of the child has been abused or neglected;
15. whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
16. whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and
17. other factors as the court considers necessary.

None of these factors will tip the "best interest" scale alone, but all are considered and weighed by the Family Court Judge in the determination of custody.