A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "EQUAL PARENTING ACT"; BY AMENDING SECTIONS 63-3-810, 63-3-820, 63-3-830, 63-3-850, AND 63-3-870, ALL RELATING TO GUARDIANS AD LITEM APPOINTED IN PRIVATE FAMILY COURT ACTIONS, SO AS TO PROVIDE CERTAIN PROTECTIONS AGAINST GUARDIAN AD LITEM BIAS OR OTHER MISCONDUCT, TO CLARIFY THAT EQUAL PARENTING TIME FOR BOTH PARENTS IS PRESUMED TO BE IN A CHILD'S BEST INTEREST, AND TO ADDRESS THE APPORTIONMENT OF FEES AND COSTS; BY AMENDING SECTIONS 63-15-210, 63-15-220, 63-15-230, AND 63-15-240, ALL RELATING TO CHILD CUSTODY HEARINGS, SO AS TO PROVIDE THAT EQUAL PARENTING TIME IS PRESUMED TO BE IN A CHILD'S BEST INTEREST IN CHILD CUSTODY ACTIONS, THAT PARENTAL INTERFERENCE WITH THE PARENTING TIME OF THE OTHER PARENT IS GROUNDS FOR MODIFICATION OF A CHILD CUSTODY ORDER; AND FOR OTHER PURPOSES.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  This act may be cited as the "Equal Parenting Act."

 

SECTION 2.  Section 63-3-810 of the S.C. Code is amended to read:

 

    Section 63-3-810.  (A) In a private action before the family court in which custody or visitation of a minor child is an issue, the court may appoint a guardian ad litem only when it determines that:

       (1) without a guardian ad litem, the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem; or

       (2) both parties consent to the appointment of a guardian ad litem who is approved by the court.

    (B) The court has absolute discretion in determining who will be appointed as a guardian ad litem in each case. A guardian ad litem must be appointed to a case by a court order.

    (C) Notwithstanding subsection (B), a party may file a motion to dispute the court's appointment of a guardian ad litem on the basis of misconduct by the appointed guardian ad litem and seek a new appointment by the court.

 

SECTION 3.  Section 63-3-820(B) of the S.C. Code is amended to read:

 

    (B)(1) A person shall not be appointed as a guardian ad litem pursuant to Section 63-3-810 who has been convicted of any crime listed in Chapter 3 of Title 16, Offenses Against the Person; in Chapter 15 of Title 16, Offenses Against Morality and Decency; in Chapter 25 of Title 16, Criminal Domestic Violence; or in Article 3 of Chapter 53 of Title 44, Narcotics and Controlled Substances; or convicted of the crime of contributing to the delinquency of a minor, provided for in Section 16-17-490.

       (2)(a) A person shall not be appointed as a guardian ad litem pursuant to Section 63-3-810 unless the person submits to and passes a drug test administered by a certified laboratory approved by the court, screening for controlled substances as defined in Section 44-53-110. The test must be completed prior to initial appointment and annually thereafter during the term of service.

           (b) The applicant or appointed guardian ad litem shall bear the cost of the drug test, unless waived by the court upon a showing of financial hardship.

           (c) A positive test result for an illegal controlled substance, or a refusal to submit to testing, is grounds for disqualification or removal from appointment. The court shall provide notice of the test results and an opportunity for the individual to contest the findings through a hearing, where evidence of a valid prescription or other mitigating circumstances may be presented.

           (d) All test results are confidential and may be used solely for the purpose of determining eligibility pursuant to this item, in accordance with applicable privacy laws.

 

SECTION 4.  Section 63-3-830(A)(1) and (2)(e)-(f) of the S.C. Code is amended to read:

 

    (1) representing the best interest of the child. For purposes of this section, the guardian ad litem shall presume that an award of joint custody with equal or approximately equal parenting time is in the child's best interest, a presumption which is rebuttable only if a party proves by a preponderance of the evidence that equal parenting time is not in the best interest of the child;

 

           (e) attempting in good faith to establish a positive relationship with each parent to include a prohibition on misconduct toward or mistreatment of either parent by the guardian ad litem;

           (e)(f) obtaining the criminal history of each party when determined necessary; and

           (f)(g) considering the wishes of the child, if appropriate;

 

SECTION 5.  Section 63-3-850(D) of the S.C. Code is amended to read:

 

    (D) At any time during the action, a party may petition the court to review the reasonableness of the fees and costs submitted by the guardian ad litem or the attorney for the guardian ad litem.

    (D)(1) The court has discretion to apportion the fees and costs based on the parties' financial circumstances in the following manner:

           (a) Both parties equally split the fees and costs.

           (b) One party pays one hundred percent of the fees and costs.

           (c) The court divides the fees and costs proportionately based on income disparities between the parties.

        (2)(a) If one or both parties is a low-income individual with a household income at two hundred percent of the federal poverty level, the proceedings must be expedited to control costs.

           (b) If both parties individually have household incomes that exceed two hundred percent of the federal poverty level, the court may discern if proceedings should be expedited to reduce the cost burden on the parties.

    (E) At any time during the action, a party may petition the court to review the reasonableness of the fees and costs submitted by the guardian ad litem or the attorney for the guardian ad litem.

 

SECTION 6.  Section 63-3-870 of the S.C. Code is amended to read:

 

    Section 63-3-870.  A guardian ad litem may be removed from a case at the discretion of the court, or in accordance with Section 63-3-810.

 

SECTION 7.  Section 63-15-210(1) of the S.C. Code is amended to read:

 

    (1) "Joint custody" means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions. Joint custody also includes an allocation of physical custody or parenting time in which the child spends equal or approximately equal time with each parent, unless otherwise ordered by the court pursuant to Section 63-15-230.

 

SECTION 8.  Section 63-15-220(A) of the S.C. Code is amended to read:

 

    (A) At all temporary hearings where custody is contested, each parent must prepare, file, and submit to the court a parenting plan, which reflects parental preferences, the allocation of parenting time to be spent with each parent, and major decisions, including, but not limited to, the child's education, medical and dental care, extracurricular activities and religious training. However, the parties may elect to prepare, file, and submit a joint parenting plan. The court shall issue temporary and final custody orders only after considering these parenting plans; however, the failure by a party to submit a parenting plan to the court does not preclude the court from issuing a temporary or final custody order. Unless agreed to by the parties, there is a rebuttal presumption that a court award of joint custody with equal or approximately equal parenting time is in the child's best interest. To rebut this presumption, a party must prove by a preponderance of the evidence that equal parenting time is not in the best interest of the minor child. Except when a parenting time schedule is agreed to by the parties and approved by the court, the court must evaluate all of the factors set forth in Section 63-15-240(B) and make specific written findings of fact when creating or modifying a parenting time schedule.

 

SECTION 9.  Section 63-15-230 (C) and (D) of the S.C. Code is amended to read:

 

    (C) If custody is contested or if either parent seeks an award of joint custody, the court shall consider all custody options, including, but not limited to, joint custody, and, in its final order, the court shall state its determination as to custody and shall state its reasoning for that decision. There is a rebuttable presumption that a court award of joint custody with equal or approximately equal parenting time is in the child's best interest. This presumption is rebuttable by a preponderance of the evidence pursuant to all relevant factors including, but not limited to, the factors in Section 63-15-240(B). The presumption may be rebutted if the court finds that the parents have reached an agreement on all issues related to custody, or that a pattern of domestic violence has occurred as defined in Section 16-25-20 or 16-25-65, or that a domestic violence order is in effect or in the process of being enacted against one parent. If the presumption is rebutted, the court shall construct a parenting time schedule that maximizes the time each parent has with the child and is consistent with the child's welfare. The court shall make specific written findings of fact and conclusions of law explaining any deviation from equal parenting time.

    (D) Notwithstanding the custody determination, the court may allocate parenting time in the best interest of the child.

 

SECTION 10. Section 63-15-240 of the S.C. Code is amended to read:

 

    Section 63-15-240. (A) In issuing or modifying an order for custody affecting the rights and responsibilities of the parents, the order may include, but is not limited to:

       (1) the approval of a parenting plan;

       (2) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent;

       (3) the award of joint custody, in which case the order must include:

           (a) residential arrangements with each parent in accordance with the needs of each child; and

           (b) how consultations and communications between the parents will take place, generally and specifically, with regard to major decisions concerning the child's health, medical and dental care, education, extracurricular activities, and religious training;

       (4) other custody arrangements as the court may determine to be in the best interest of the child.

    (B) In issuing or modifying a custody order, the court must consider the best interest of the child, which may include, but is not limited to:

       (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, including a pattern of wilfully creating conflict or making unfounded allegations of abuse in an attempt to disrupt joint custody or parenting time. If the court finds by a preponderance of the evidence that a parent has made false or unfounded allegations of abuse against the other parent, this shall be considered a material change of circumstances warranting modification of custody or parenting time, and the court may deem such behavior as not in the child's best interest and may require the offending parent to pay court costs or fees;

       (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 and, if allegations of abuse or neglect are made, whether such allegations are supported by clear and convincing evidence or have been determined to be unfounded by a preponderance of the evidence;

       (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.

       (17) the frequency with which a parent would be likely to leave the child in the care of a nonrelative on evenings and weekends when the other parent would be available and willing to provide care; and

       (18) other factors as the court considers necessary.

    (C) A custody order issued or modified by the court must be supported by written findings of fact if the order establishes a parenting time schedule that does not allocate approximately equal parenting time to each parent, which must address why it is not in the best interest of the child for each parent to have approximately equal parenting time.

    (D) A determination of custody, a parenting plan, or a parenting time schedule may not be modified without a determination that modification is in the best interest of the child and a showing of a substantial, material, and unanticipated change in circumstance.

 

SECTION 11. This act takes effect upon approval by the Governor.

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