S 0873 General Bill, By G. Smith, Mescher and J.V. Smith
 A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
 20-7-105 so as to provide a rebuttable presumption that a parent's
 testamentary preference for custody of a child upon a parent's death must be
 honored except under certain circumstances.

   10/11/93  Senate Prefiled
   10/11/93  Senate Referred to Committee on Judiciary
   01/11/94  Senate Introduced and read first time SJ-25
   01/11/94  Senate Referred to Committee on Judiciary SJ-25

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-105 SO AS TO PROVIDE A REBUTTABLE PRESUMPTION THAT A PARENT'S TESTAMENTARY PREFERENCE FOR CUSTODY OF A CHILD UPON THE PARENT'S DEATH MUST BE HONORED EXCEPT UNDER CERTAIN CIRCUMSTANCES.

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

SECTION 1. The 1976 Code is amended by adding:

"Section 20-7-105. Where one parent of a child who is lawful custodian of that child dies due to a terminal illness, and where that parent in consideration of impending death has designated in a lawful last will and testament preference as to who the custodian of the child should be after the parent's death, a court considering the issue of custody after the parent's death shall apply a rebuttable presumption that the decedent's wishes be honored and incorporated into the court's custody order unless a preponderance of evidence establishes that the:

(1) custodial preference expressed in the will is not in the child's best interests; or

(2) the individual so named as custodian refuses to accept custody of the child. This presumption also applies in a custody action brought before the death of the parent where that parent is under a serious and debilitating physical or mental incapacity due to the terminal illness, and where there is a custodial preference expressed in a valid will."

SECTION 2. This act takes effect upon approval by the Governor.