In order to get custody of your sibling in South Carolina, you must understand the child custody laws in South Carolina. In South Carolina, child custody refers to the set of family based laws that grant certain legal rights to a child’s biological or adoptive parent.
It is important to note that child custody laws in South Carolina automatically grant child custody rights of a child to their biological mother when a child is born. If both parents were married at the time of the child’s birth, then both parents get legal rights automatically.
A parent may also obtain child custody upon receiving custody of a child in a divorce or legal separation. For example, if a child’s parents were married but later became divorced or legally separated, child custody laws will be utilized in that process to determine the custody rights of each parent.
If parents were unmarried at the time of the child’s birth, then they can complete a Paternity Acknowledgement affidavit at the hospital or at the DHEC Vital Records. The parents may be unsure about biological parentage. In that case, DNA testing is available through the Department of Social Services (“DSS”) to establish paternity and assist both parties in obtaining a court order if needed.
It is important to note that a parent who has legal custody over their child in South Carolina will have certain legal rights to make decisions on behalf of that child. Examples of legal rights a parent with custody has include:
- The right to make educational decisions for the child
- The right to determine the child’s primary residence
- The right to make religious decisions regarding what religion to raise the child in
- The right to make legal decisions on behalf of the child, such as whether or not to enter into certain legal contracts on behalf of their child or the right to represent their child in a lawsuit
- The right to make invasive or noninvasive medical decisions for the child
- The right to consent to the marriage of the child if they are underage
- The right to make decisions regarding the psychiatric treatment of the child
When it comes to a sibling obtaining custody of their younger sibling in South Carolina, the sibling will actually need to go through the guardianship process, not the custody process. This means that you will need to download, fill out, and file a Petition for Guardianship to be appointed as guardian for your minor sibling.
What Is the Process for Obtaining Custody of a Sibling?
In South Carolina, a court will consider certain factors when determining whether to name a non-parent as legal guardian. Once again, in the case of a sibling, South Carolina law does not allow for a sibling to obtain custody. Instead, the process for obtaining custody of a sibling is to seek guardianship over the minor sibling.
It is important to note that the considerations for determining custody are almost identical to the considerations for determining whether or not to grant a guardianship of a minor. However, when it comes to being named as legal guardian for a minor sibling, the older sibling will typically need to have the approval of the parents.
The older sibling must also be able to demonstrate why naming them as legal guardian is in the child’s best interest. The parents or their current guardians may not agree to an older sibling’s petition for guardianship.
In the case of parents or their current guardians not agreeing to the older sibling’s petition for guardianship, the older sibling must provide evidence that the parents are unfit or currently incapable of caring for their sibling.
Examples of unfit parenting include abuse, neglect, or abandonment. In a contested guardianship case, the older sibling will need to attend a variety of court hearings. During the guardianship hearing a judge will review the older sibling’s petition and any evidence they provide the court.
For instance, the older sibling may provide evidence of physical, psychological, and emotional aspects of the child’s life, parental character, and any history of domestic violence in the home. It is crucial to note that when the court is making a decision as to whether or not to grant a guardianship to a minor, the court will always utilize the child’s best interest standard.
The child’s best interest standard is a legal standard used by South Carolina courts when making decisions regarding children. Under the child’s best interest standard, any decisions that will affect a child, such as a minor guardianship, should ultimately benefit and protect the child. As such, in order to get custody of a sibling, the older sibling will need to demonstrate why naming them as guardian is in the child’s best interest.
How Old Do You Have to Be to Take Custody of a Sibling in South Carolina?
In order to seek guardianship of a minor sibling in South Carolina, you must be at least 21 years old. Additionally, you will need to file a petition in the family court in the county where your sibling resides. Further, the sibling that the older sibling is seeking to gain guardianship over must be under 18 years of age or otherwise legally dependent.
Can a Sibling Be a Legal Guardian?
As mentioned above, a sibling seeking to be appointed legal guardian of their younger sibling is allowed. However, when it comes to being named legal guardian of a younger sibling, a court will typically only award an older sibling legal guardianship in certain circumstances.
These circumstances include situations where it is demonstrated that naming the older sibling guardian is in the minor sibling’s best interest. Once again, the court will utilize the child’s best interest standard when making a decision on a guardianship case.
What Else Should Be Considered?
One important factor to consider is that there are costs involved with obtaining legal guardianship of a sibling. First, there are filing fees that must be paid in order to initiate the guardianship process. The current filing fee to begin a guardianship matter is $150. This must be paid along with serving the child’s parents with the petition if they are available.
When it comes to estimating other costs of a guardianship case, all of the following may affect the total cost of the guardianship case:
- Whether or not the guardianship is contested
- If contested, the guardianship case will likely be more complicated and include taking depositions, filing temporary motions, and excessive court hearings
- When it comes to guardianship cases, it is often advised to seek representation from a local attorney in South Carolina
- Attorney fees will then vary based on the amount of time the attorney spends on the guardianship case
- There are also miscellaneous fees that add up quickly in guardianship cases, such as the costs related to paying process servers, paying court costs, undergoing a background check, taking a guardianship course, and paying for certified copies of documents
Further, unlike other states, South Carolina does not require an annual renewal of guardianship. This means that once a guardian is appointed, the guardianship remains in effect until the court modifies or terminates it. However, if there have been significant changes in circumstances or if the ward’s condition improves, the court may reevaluate the necessity of the guardianship.
Do I Need an Attorney for Sibling Custody Issues?
If you are seeking to be named the legal guardian of your sibling, and you have any questions regarding the process, then it is in your best interests to consult with an experienced South Carolina child custody lawyer.
LegalMatch can assist you in setting up a legal consultation with an experienced custody lawyer in your area. An experienced child custody attorney will be able to help you understand South Carolina’s specific laws on obtaining guardianship over your minor sibling.
A custody lawyer will also be able to help you gather the evidence necessary to prove that naming you as your sibling’s legal guardian is in their best interests. An attorney will also be able to help guide you through the process of filing the petition for guardianship, serving all interested parties, and doing all of the necessary background checks, etc. Finally, an attorney will also be able to represent you in court, as needed.
