Should I hire a Private Investigator

The answer is…it depends.  What are the issues that you are trying to prove?  What is the investment that you will be making in the private investigator?  What do you hope to get out of the investigation?  Whenever we use the services of another professional in the divorce process it is important to determine the cost and the return on investment.

alf_privateiroiSo, what are some ways to measure your return on investment?

Alimony.  The law in South Carolina states that an adulterous affair that occurs before a couple of things happen (the signing of a marital settlement agreement or a final order of separate maintenance) is an absolute bar to alimony.  So, if you are in a position where it is likely that you will be required to pay your spouse alimony, then spending some money – even spending a lot of money – on a private investigator will provide a great return on your investment by preventing you from making an alimony payment every month for the rest of your spouse’s life if the PI can establish an adulterous affair.

Divorce.  Often adulterous relationships happen in mysterious places and in hidden locations.  These are not things most people do out in the open.  So, obtaining proof of an affair is not always easy.  If you are certain that you want to proceed with filing for divorce on adultery grounds then you should consider hiring a private investigator.  PI’s work with attorneys to know what evidence is needed for the attorney to establish adultery.  In this case, the ROI is probably best measured in the speed of the divorce.  It is possible if all other issues can be worked out quickly for your divorce to be final in as little as 90 days.  Though, if any other issues (property division, custody, etc.) remain contested then your divorce is likely to take a much longer time.

Children’s Issues.  Depending on what you are trying to prove, your ROI will be less about making money on this issue and more about proving with photographic and third party evidence what you believe is going on.  Clients make claims about their spouse’s behavior with the children all the time based on what they hear the children say or what their “gut” is telling them.  But it is hard to convince a judge to take some action such as restricting visitation in some way without some physical evidence.  A PI can surveil your spouse to determine if they are really taking care of the child or determine if they are allowing the children to have contact with people they are forbidden to see such as a boyfriend or girlfriend.

Financial Issues.  Sometimes a person’s financial declaration would have you believe that they are destitute and can’t go on living if they are made to pay alimony or child support.  Most of the time this is when a spouse is self-employed and they do not receive a paycheck from an employer to establish their true income.  But, when you really dig into their lifestyle you see that they have a pretty extravagant lifestyle that would require an pretty significant income.  When you actually look at the living expenses such as mortgages, car payments, and spending on fun activities you can try to establish that there is an income greater than what the other spouse is trying to portray.

So, depending on the issue you desire to have investigated, you should work with your divorce lawyer and private investigator to determine about how much of an investigation is going to cost you and what you can benefit by having the investigation done.  Sometimes the return will not be worth it.  Other times it will be very much worth it!

South Carolina Child Custody

If you are facing a separation/divorce matter or you are aren’t married but have children with someone and you are considering separating you most likely have many questions related to the child custody laws in South Carolina, how things will look when you separate, and what you can expect when it comes to time and responsibility for your children.  When you discuss things with friends who have “been there, done that” or you begin your research online you hear lots of terms.  Many of them are confusing or seem contradictory.

When it comes to custody of children I encourage people to ignore general words like sole custody, joint custody, shared custody and consider two things: (1) the time with their children and (2) the responsibility and decision-making for the children.  Let’s look at each individually.

Time with your children

The SC Code identifies two types of custody in §63-15-210: joint custody and sole custody.  These terms really have nothing to do with the time you have with your children.  The court may identify a parent to be the “primary” parent for issues such as school assignments but that doesn’t mean that one parent has the child the majority of the time.

In a child custody case – and primarily while being negotiated by the parties – an agreement can be reached that resolves the time with each parent issue in creative ways.  The parents may agree to divide the weeks equally, alternate weekly, have the child live with one parent the majority of the time and available when the other parent is off of work, and countless other options.  Judges are even beginning to stray from the old every other weekend mentality by extending those weekends and adding more off-week time with the children and the non-custodial parent.

All of that to say: don’t assume one parent has to have the children the majority of the time and the other parent has to settle for alternating weekends.

Responsibility and Decision-making for the children

South Carolina custody laws set forth two types of legal custody: joint custody and sole custody.  These specifically related to the responsibility and decision-making for the children.  §63-15-210 defines joint custody when parents have equal rights and responsibilities for major decisions concerning the children.  This can work in many cases, but can also be a bad decision for other parents who simply can not co-parent and work together.  The court can designate one parent to be the primary decision-maker for several or all issues including the children’s health, education, religious upbringing and general wellbeing.  The court can also So in the event the parents cannot agree to a final decision one of them can make a decision.  This primary decision making can also be broken up between the parents where one parent is the primary decision-maker for health and religious issues and the other would be the primary decision-maker for educational issues.  Even in instances where there is a primary decision-maker, the requirement is still there for the parties to confer jointly in the decision-making process.  The primary decision-maker does not have the right to make all of the decisions without conferring with the other parent.

In the case of sole legal custody of the children the custodial parent has the legal authority to make all of the decisions for the children without the input or opinion of the other parent.  In cases where one parent has not been involved in the life of the children or the parents simply cannot put aside their differences and work together to co-parent, this is the most likely outcome in a custody case.

 

Who Wins Custody of a Child when a Spouse Cheats?

Child custody cases can be highly contested because of the emotional nature of the subject.  Throw in a flammable issue like adultery and be prepared for some fireworks!  Adultery is an issue that can cloud judgment on both sides of a case and prevent even the most straight-forward of issues from resolving themselves outside of a court room.  But does adultery truly impact the custody decision of the court?

When deciding custody, the family court judge must determine what is in the best interest of the child.  The SC Code sets forth some factors that the Court should consider in determining the “best interest” in each case:

  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.

[SC Code §63-15-240(B) – emphasis is mine]

I think it is important to note that the Code does not list one spouse’s marital fault such as adultery as a specific factor the court should consider.  However, I  have highlighted a few factors that something like adultery may fall into.  Often, parents can be temporarily blinded by “new love” and focus more time on the new boyfriend or girlfriend while not spending as much quality time with their children.  A new love may also throw living arrangements and residences into disarray.  Is your spouse living with their boyfriend/girlfriend?  What if your spouse is bringing the child around the boyfriend or girlfriend?  Is your spouse moving back and forth between their apartment and the lover’s?  What if you have raised your children in a home where their spiritual foundation has taught them adultery is wrong?  Paragraph 17 also gives a lot of room for the family court judge to consider the other important factors that they believe directly impact custody.

The bottom line is that child custody is largely a case-by-case decision to determine what is best for your particular children.  In some cases, adultery can be a factor that would prevent a parent from obtaining custody of the children.  In other cases it simply is not enough to outweigh awarding custody to that parent.

 

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.

What is a parenting plan

Recently, South Carolina Family Courts started requiring parents involved in contested child custody actions to prepare and present a parenting plan to the Court at hearings.  So what is a parenting plan?  Essentially, the parenting plan is each parent’s proposed plan that answers the questions about who they propose would have custody (father, mother, or some form of joint custody), how decisions will be made for the children going forward, and a placement plan that describes the time that the children will spend with each parent.

Attached is a PDF version of the parenting plan used in South Carolina Family Courts.