Proposed Equal Parenting Act would shift custody standard to 50-50 in South Carolina

Lawmakers are considering a bill that could significantly change how South Carolina child custody is decided.

Supporters say current custody laws make it difficult for some parents to receive equal time with their children, even when both are fit and willing caregivers. The proposal, known as the Equal Parenting Act, would create a presumption that parents should receive 50-50 custody unless there is a clear reason not to.

Rep. Gil Gatch, R-Dorchester, who sponsors the bill, says the goal is to make equal parenting time the standard.

“Why wouldn’t we want to keep parents and children together, if they’re able, willing and fit parents? Why wouldn’t we charge the hill for that?” Gatch said.

Under current law, family court judges determine custody based on the child’s best interest, weighing factors such as each parent’s relationship with the child and who has served as the primary caregiver. But there is another factor that influences those cases. Decades-old case law creates what’s known as a ‘rebuttable presumption’ that 50-50 custody is not in the child’s best interest. That ties judges’ hands and prevents them from awarding equal custody without a strong reason.

“The case law today in South Carolina family courts doesn’t allow for the judge to say, ‘You know what, I’m going to give 50% to you and 50% to you.,” Gatch said. “There has to be something called extenuating circumstances in order for the judge to do that.”

Gatch’s bill would shift that standard. It would not only do away with the rebuttable presumption that 50-50 is not in the child’s best interest, but it would also create a new presumption that judges must start with 50-50 custody. That means the starting point would be equal time, and there would have to be a strong reason if a judge was going to deviate from that.

“It puts the court in the position to justify why one parent is not allowed to be with the kid equally, and that parent then has the opportunity to challenge it through the appeals process,” Gatch said.

But some family law attorneys argue it goes too far, and could create unintended consequences.

“Our family court judges should be allowed to hear the facts and make a determination as to parenting schedule that they believe is in the best interest of that child,” said Jennifer Creech, a family law attorney and the Chair of the Family Law Council for the South Carolina Bar.

Creech says she supports doing away with the restrictions that prevent judges from award 50-50 custody, but she says the bill would simply tie judges’ hands again by forcing them to start with 50-50, which doesn’t work for all families.

“When we start taking away the discretion of the Family Court, who’s hearing those case by case facts, then we’re really not considering the needs of South Carolina’s children,” she said. “We’re putting them all in a mold, and sometimes they just don’t fit.”

A separate proposal under consideration would remove any presumption for either joint or sole custody and giving judges full discretion in determining parenting arrangements.

Both bills remain in committee in the South Carolina House, where lawmakers are expected to consider amendments before deciding whether to advance them.