visitation

Jurisdiction: 

Area of Law: 

Question: 

I am in a relationship with another person and we live together and have been for over a year. I have visitation rights to my son. We live in South Carolina, when he comes and visits is there a law that states he can not stay in my house with my new spouse if we are not married? The papers that are written up do not state that we can or can not.

Selected Answer: 

DakotaLegal's picture

It seems fair to say that you

It seems fair to say that you are in what you view as a serious, committed relationship. For example, you refer to you new “spouse,” but indicate there is not a marriage. The difference in terms of the law (and your feelings) is naturally an important one. This raises a question about whether you are telling others you are “married,” when in fact, you are not. It is possible to create a common law marriage, depending on very detailed facts (but you indicate only a year of being together, so it is doubtful). People who may have intimate, serial sexual relationships during a child’s visitation, without any intention of a commitment may face accusations from the custodial parent. This can be especially important in your case, since (a) you apparently have visitation instead of custody and (b) since the custody may have special rules about the child’s religious upbringing.

And, yes, South Carolina judges ARE permitted to consider unmarried co-habitation as a serious MORAL issue, affecting your parental fitness for custody and visitation.

If you are living with a significant other, and having sexual relations, and you are not married, a Family Court in South Carolina will probably consider the relationship to be what’s called an "immoral environment" for a child. This means your family life is going to be a factor. At the same time, unmarried co-habitation is only one of several specific factors that the Court will review in any custody decision. Depending on the facts of the case, this might even turn out to be The deciding factor.

Some states and South Carolina is one of them, that almost yearly have a bill in the legislature to affect these situations: sometimes benefitting, and sometimes depriving, the unmarried parent of certain rights to visitation. If and until you do re-marry, you should keep track of the changes in visitation laws in South Carolina. Contact your local state legislator to get this information and also referrals that might help. http://www.scstatehouse.gov/legislatorssearch.php/

There are other laws in South Carolina that might affect your visitation rights. One South Carolina law makes it illegal for an unmarried man and woman to have intercourse “in private.” This law, however, is not in practical term enforced, but can provide some guidance (critics say, an excuse) for a judge to limit visitation. Here is a link to a publication from the South Carolina bar, describing visitation rights: http://www.scbar.org/PublicServices/LawLine/Visitationrights.aspx .

There are some important unknowns in your question, too. The age, sex, and emotional maturity of the child are important. The relationships of the custodial parent (your ex) may also affect the answer. You would be in a much more secure position if your ex-spouse (the custodial parent) either did or does have a similar non-marital partner in the child’s regular home. This discussion also assumes you are having sexual relations with your present partner: you may not be. It’s also not clear if you have had a formal custody agreement issued from a court or not. There is also the possibility that your current partner has children from a prior relationship: if so, how do you accommodate these extra demands on the household? Is there friction between your child and your partner? Be ready to answer any suggestions that might come from your ex about negative impacts on your child. Here is one South Carolina case, where a court compared the home environment of the two spouses. http://caselaw.findlaw.com/sc-court-of-appeals/1602579.html?utm_source=f...(FindLaw+Case+Law+Updates+-+SC+Court+of+Appeals)

If you have not yet had a formal custody agreement with your Ex, or you want to improve your visitation, or even change the current custody agreement, it’s good you are researching these issues now. A court will be interested in how you work to improve the atmosphere for your child over time. This might include making special arrangements for your partner’s role. Whatever you do, be able to document (for example, in a diary) that you are putting the best interests of your child to the front whenever visitation occurs.

Finally, there are organizations that help unmarried people who are in your situation. http://www.unmarriedamerica.org/laws-affecting.html The important thing at this point is to review the criteria a judge uses to decide custody and visitation. Go over the checklist, and assess what your strengths and weaknesses are in proving an environment that benefits your child, in fact and under the law.

All Comments

DakotaLegal's picture

It seems fair to say that you

It seems fair to say that you are in what you view as a serious, committed relationship. For example, you refer to you new “spouse,” but indicate there is not a marriage. The difference in terms of the law (and your feelings) is naturally an important one. This raises a question about whether you are telling others you are “married,” when in fact, you are not. It is possible to create a common law marriage, depending on very detailed facts (but you indicate only a year of being together, so it is doubtful). People who may have intimate, serial sexual relationships during a child’s visitation, without any intention of a commitment may face accusations from the custodial parent. This can be especially important in your case, since (a) you apparently have visitation instead of custody and (b) since the custody may have special rules about the child’s religious upbringing.

And, yes, South Carolina judges ARE permitted to consider unmarried co-habitation as a serious MORAL issue, affecting your parental fitness for custody and visitation.

If you are living with a significant other, and having sexual relations, and you are not married, a Family Court in South Carolina will probably consider the relationship to be what’s called an "immoral environment" for a child. This means your family life is going to be a factor. At the same time, unmarried co-habitation is only one of several specific factors that the Court will review in any custody decision. Depending on the facts of the case, this might even turn out to be The deciding factor.

Some states and South Carolina is one of them, that almost yearly have a bill in the legislature to affect these situations: sometimes benefitting, and sometimes depriving, the unmarried parent of certain rights to visitation. If and until you do re-marry, you should keep track of the changes in visitation laws in South Carolina. Contact your local state legislator to get this information and also referrals that might help. http://www.scstatehouse.gov/legislatorssearch.php/

There are other laws in South Carolina that might affect your visitation rights. One South Carolina law makes it illegal for an unmarried man and woman to have intercourse “in private.” This law, however, is not in practical term enforced, but can provide some guidance (critics say, an excuse) for a judge to limit visitation. Here is a link to a publication from the South Carolina bar, describing visitation rights: http://www.scbar.org/PublicServices/LawLine/Visitationrights.aspx .

There are some important unknowns in your question, too. The age, sex, and emotional maturity of the child are important. The relationships of the custodial parent (your ex) may also affect the answer. You would be in a much more secure position if your ex-spouse (the custodial parent) either did or does have a similar non-marital partner in the child’s regular home. This discussion also assumes you are having sexual relations with your present partner: you may not be. It’s also not clear if you have had a formal custody agreement issued from a court or not. There is also the possibility that your current partner has children from a prior relationship: if so, how do you accommodate these extra demands on the household? Is there friction between your child and your partner? Be ready to answer any suggestions that might come from your ex about negative impacts on your child. Here is one South Carolina case, where a court compared the home environment of the two spouses. http://caselaw.findlaw.com/sc-court-of-appeals/1602579.html?utm_source=f...(FindLaw+Case+Law+Updates+-+SC+Court+of+Appeals)

If you have not yet had a formal custody agreement with your Ex, or you want to improve your visitation, or even change the current custody agreement, it’s good you are researching these issues now. A court will be interested in how you work to improve the atmosphere for your child over time. This might include making special arrangements for your partner’s role. Whatever you do, be able to document (for example, in a diary) that you are putting the best interests of your child to the front whenever visitation occurs.

Finally, there are organizations that help unmarried people who are in your situation. http://www.unmarriedamerica.org/laws-affecting.html The important thing at this point is to review the criteria a judge uses to decide custody and visitation. Go over the checklist, and assess what your strengths and weaknesses are in proving an environment that benefits your child, in fact and under the law.