South Carolina General Assembly
116th Session, 2005-2006

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S. 1319

STATUS INFORMATION

General Bill
Sponsors: Senators Knotts, Bryant, Reese, Cromer, Williams, Martin and Scott
Document Path: l:\council\bills\nbd\12273ac06.doc

Introduced in the Senate on April 5, 2006
Currently residing in the Senate Committee on Judiciary

Summary: Parenting plans

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
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    4/5/2006  Senate  Introduced and read first time SJ-10
    4/5/2006  Senate  Referred to Committee on Judiciary SJ-10
    4/5/2006  Senate  Referred to Subcommittee: Ritchie (ch), Rankin, Lourie, 
                        Scott

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VERSIONS OF THIS BILL

4/5/2006

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SUBARTICLE 13 TO ARTICLE 11, CHAPTER 7, TITLE 20, OF THE 1976 CODE SO AS TO PROVIDE THAT PARENTING PLANS MUST BE INCORPORATED INTO TEMPORARY OR FINAL ORDERS OF DIVORCE OR SEPARATE MAINTENANCE, TO SPECIFY THE CONTENTS OF A PARENTING PLAN INCLUDING, BUT NOT LIMITED TO, ALLOCATION OF DECISION MAKING AUTHORITY; HOLIDAY AND VISITATION SCHEDULES, PROVIDING FOR MEDIATION TO SETTLE POST DIVORCE DISPUTES PRIOR TO COURT ACTION, AND TO ESTABLISH CHILD SUPPORT PAYMENTS; TO PROVIDE CRITERIA FOR THE COURT TO CONSIDER WHEN PARTIES DO NOT REACH AN AGREEMENT ON A PARENTING PLAN AND TO AUTHORIZE THE COURT TO ORDER THE PARTIES TO MEDIATION TO ESTABLISH THE PLAN; TO PROVIDE CRITERIA AND LIMITATIONS FOR THE DEVELOPMENT OF A CHILD'S HOLIDAY AND VISITATION SCHEDULE; TO REQUIRE PARTIES IN A DIVORCE OR SEPARATE MAINTENANCE ACTION TO ATTEND A PARENT EDUCATIONAL SEMINAR WHEN MINOR CHILDREN ARE INVOLVED; TO IMPOSE AN ADDITIONAL THIRTY-FIVE DOLLAR FEE ON THE ISSUANCE OF A MARRIAGE LICENSE AND TO PROVIDE THAT THESE FUNDS MUST BE USED TO PAY FOR MEDIATION AND EDUCATION REQUIRED BY THIS SUBARTICLE, CHILD ABUSE PREVENTION, AND DOMESTIC VIOLENCE SERVICES AND TO PROVIDE FOR AN EXEMPTION FROM THIS ADDITIONAL FEE IF APPLICANTS FOR THE MARRIAGE LICENSE HAVE TAKEN A PREMARITAL PREPARATION COURSE.

Whereas, the General Assembly recognizes the detrimental effect of divorce on many children and that divorce, by its nature, means that neither parent will have the same access to the child as would have been possible had they been able to maintain an intact family; and

Whereas, the General Assembly also finds the need for stability and consistency in children's lives and also has an interest in educating parents concerning the impact of divorce on children; and

Whereas, the General Assembly recognizes the fundamental importance of the parent-child relationship to the welfare of the child, that the relationship between the child and each parent should be fostered unless inconsistent with the child's best interests and that the best interests of the child are served by a parenting arrangement that best maintains a child's emotional growth, health and stability, and physical care; and

Whereas, the General Assembly finds that mothers and fathers in families are the backbone of this State and this nation. Families teach children right from wrong, respect for others, and the value of working hard to make a good life for themselves and for their future families; and

Whereas, most children do best when they receive the emotional and financial support of both parents; and

Whereas, the General Assembly finds in child custody and visitation matters to develop parenting plans that emphasize the best interests of their children will help promote healthier, happier, and well-adjusted children.

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

SECTION    1.    Article 11, Chapter 7, Title 20 of the 1976 Code is amended by adding:

"Subarticle 13

Parenting Plans

Section 20-7-2100.    Parents have the responsibility to make decisions and perform other parental duties necessary for the care and growth of their minor children. In any proceeding between parents under this subarticle, the best interests of the child must be the standard by which the court determines and allocates the parties' parental responsibilities.

Section 20-7-2102.    As used in this subarticle:

(1)    'Custodial parent' means the parent with whom the child resides more than fifty percent of the time.

(2)    'Mediation' means that definition provided for in the South Carolina Supreme Court Rules, Family Court Mediation, Rule 1.

(3)    'Parenting responsibilities' means those aspects of the parent-child relationship in which the parent makes decisions and performs duties necessary for the care and growth of the child. 'Parenting responsibilities', the establishment of which is the objective of a permanent parenting plan, include:

(a)    providing for the child's emotional care and stability, including maintaining a loving, stable, consistent, and nurturing relationship with the child and supervising the child to encourage and protect emotional, intellectual, moral, and spiritual development;

(b)    providing for the child's physical care, including attending to the daily needs of the child, such as feeding, clothing, physical care, grooming, supervision, health care, day care, and engaging in other activities that are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;

(c)    providing encouragement and protection of the child's intellectual and moral development, including attending to adequate education for the child, including remedial or other education essential to the best interests of the child;

(d)    assisting the child in developing and maintaining appropriate interpersonal relationships;

(e)    exercising appropriate judgment regarding the child's welfare, consistent with the child's developmental level and the family's social and economic circumstances; and

(f)    providing any financial security and support of the child in addition to child support obligations.

(4)    'Permanent parenting plan' means a written plan for the parenting and best interests of the child, including the allocation of parenting responsibilities and the establishment of a residential schedule, as well as an award of child support.

(5)    'Residential schedule' means the schedule of when the child is in each parent's physical care, and it shall designate the custodial parent; in addition, the residential schedule shall designate in which parent's home each minor child shall reside on given days of the year, including provisions for holidays, birthdays of family members, vacations, and other special occasions;

(6)    'Temporary parenting plan' means a plan for the temporary parenting and the best interests of the child, including the establishment of a temporary residential schedule and the establishment of temporary financial support, designed to maintain the financial status quo, to the extent possible.

Section 20-7-2104.    Except as may be specifically provided otherwise, a temporary parenting plan must be incorporated in any temporary order of the court in actions for divorce, legal separation, or separate support and maintenance involving a minor child. A temporary parenting plan must comply with those provisions for a permanent parenting plan under Section 20-7-2106(A) that are applicable for the time frame and must include a residential schedule as described in Section 20-7-2106(B). The court shall approve a temporary parenting plan as follows:

(1)    if the parties can agree to a temporary parenting plan, no written temporary parenting plan is required to be entered; or

(2)    if the parties cannot agree to a temporary parenting plan, either or both parties may request the court to order mediation. The court may immediately order the parties to participate in mediation to establish a temporary parenting plan unless one of the restrictions in Section 20-7-2110 exists. If mediation is not available, either party may request and the court may order an expedited hearing to establish a temporary parenting plan. In either mediation or in a hearing before the court each party shall submit a proposed temporary parenting plan and a financial declaration, and a verified statement that the plan is proposed in good faith and is in the best interest of the child. If only one party files a proposed temporary parenting plan in compliance with this section, that party may petition the court for an order adopting that party's plan by default, upon a finding by the court that the plan is in the child's best interest. In determining whether the proposed temporary parenting plan serves the best interests of the child, the court must be governed by the allocation of residential time and support obligations contained in the child support guidelines.

Section 20-7-2106.    (A)    Any final decree or decree of modification in an action for divorce, legal separation, or separate support and maintenance involving a minor child must incorporate a permanent parenting plan; however, this subarticle is not applicable to parties who were divorced before January 1, 2007, and thereafter return to court to enter an agreed order modifying terms of the previous court order. A permanent parenting plan must:

(1)    provide for the child's changing needs as the child grows and matures, in a way that minimizes the need for further modifications to the permanent parenting plan;

(2)    establish the authority and responsibilities of each parent with respect to the child, consistent with the criteria in this subarticle;

(3)    minimize the child's exposure to harmful parental conflict;

(4)    provide for a process for mediation, before court action, unless precluded or limited by Section 20-7-2110; however, Title IV-D cases are excluded from the requirement of mediation as to any child support issue involved. In mediation:

(a)    preference must be given to carrying out the parenting plan;

(b)    the parents shall use mediation to resolve disputes relating to the implementation of the plan;

(c)    a written record must be prepared of any agreement reached in mediation, or settlement conference, and must be provided to each party to be drafted into a consent order of modification;

(d)    if the court finds that a parent wilfully failed to appear at a scheduled mediation without good reason, the court may, upon motion, award attorney fees and financial sanctions to the prevailing parent;

(e)    the provisions of this subsection must be set forth in the decree; and

(f)    nothing in this subarticle precludes court action, if required to protect the welfare of the child or a party;

(5)    allocate decision-making authority to one or both parties regarding the child's education, health care, extracurricular activities, and religious upbringing. The parties may incorporate an agreement related to the care and growth of the child in these specified areas, or in other areas, into their plan, consistent with the criteria in this subarticle. Regardless of the allocation of decision making in the parenting plan, the parties may agree that either parent may make emergency decisions affecting the health or safety of the child;

(6)    provide that each parent may make the day-to-day decisions regarding the care of the child while the child is residing with that parent;

(7)    provide that when mutual decision making is designated but cannot be achieved, the parties shall make a good-faith effort to resolve the issue through mediation, subject to the exception set forth in subitem (f) of item (4);

(8)    require the obligor to report his or her income annually on a date certain to the obligee, and the Department of Social Services in Title IV-D cases, on a form provided by the court; and

(9)    specify that if the driver's license of a parent is currently expired, canceled, suspended, or revoked or if the parent does not possess a valid driver license for any other reason, the parent shall make acceptable transportation arrangements as may be necessary to protect and ensure the health, safety, and welfare of the child when the child is in the custody of that parent.

(B)    A permanent parenting plan must include a residential schedule as defined in Section 20-7-2102. The court shall order residential provisions for each child, consistent with the child's developmental level and the family's social and economic circumstances, that encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child's residential schedule must be consistent with this subarticle. If the limitations of Section 20-7-2110 are not dispositive of the child's residential schedule, the court shall consider the following factors:

(1)    the parent's ability to instruct, inspire, and encourage the child to prepare for a life of service and to compete successfully in the society that the child faces as an adult;

(2)    the relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3)    the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

(4)    wilful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent's lack of good faith in these proceedings;

(5)    the disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care;

(6)    the degree to which a parent has been the primary caregiver, which for purposes of this item, means the parent who has taken the greater responsibility for performing parental responsibilities;

(7)    the love, affection, and emotional ties existing between each parent and the child;

(8)    the emotional needs and developmental level of the child;

(9)    the character and physical and emotional fitness of each parent as it relates to each parent's ability to parent or to the welfare of the child;

(10)    the child's interaction and interrelationships with siblings and with significant adults, as well as the child's involvement with the child's physical surroundings, school, or other significant activities;

(11)    the importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;

(12)    evidence of physical or emotional abuse to the child, to the other parent, or to any other person;

(13)    the character and behavior of any other person who resides in or frequents the home of a parent and that person's interactions with the child;

(14)    the reasonable preference of the child, depending upon the age of the child and as considered appropriate by the court. The preference of older children should normally be given greater weight than those of younger children;

(15)    each parent's employment schedule, and the court may make accommodations consistent with those schedules; and

(16)    any other factors considered relevant by the court.

(C)    The court shall approve a permanent parenting plan as follows:

(1)    upon agreement of the parties:

(a)    with the entry of a final decree or judgment; or

(b)    with a consent order to modify a final decree or judgment involving a minor child;

(2)    if the parties cannot reach agreement on a permanent parenting plan, upon the motion of either party, or upon its own motion, the court may order mediation to determine a permanent parenting plan; or

(3)    if the parties have not reached agreement on a permanent parenting plan at least forty-five days before the date set for trial, each party shall file and serve a proposed permanent parenting plan, even though the parties may continue to mediate or negotiate. A party's failure to comply may result in the court's adoption of the plan filed by the opposing party if the court finds that plan to be in the best interests of the child. In determining whether the proposed plan is in the best interests of the child, the court may consider the allocation of residential time and support obligations. Each parent submitting a proposed permanent parenting plan shall attach a financial declaration and a verified statement that the plan is proposed in good faith and is in the best interest of the child.

(D)    The Office of Court Administration shall develop a 'parenting plan' form that must be used consistently by each family court in the State after January 1, 2007. The office is responsible for distributing this form no later than October 1, 2006. The office is responsible for updating this form as necessary.

Section 20-7-2108.    (A)    In a proceeding for a modification of a permanent parenting plan, a proposed parenting plan must be filed and served with the petition for modification and with the response to the petition for modification. A proposed parenting plan is not required if the modification pertains only to child support. The obligor parent's proposed parenting plan must be accompanied by that party's financial declaration. The process established by Section 20-7-2106(B) must be used to establish an amended permanent parenting plan or final decree or judgment.

(B)    Title IV-D child support cases must be bifurcated from the remaining parental responsibility issues. Separate orders must be issued concerning Title IV-D issues, which must not be contained in, or part of, temporary, permanent, or modified parenting plans. The department and its public or private contractors must not be required to participate in mediation pursuant to this subarticle.

Section 20-7-2110.    (A)    The permanent parenting plan and the mechanism for approval of the permanent parenting plan must not utilize mediation, and a parent's residential time as provided in the permanent parenting plan or temporary parenting plan must be limited, if it is determined by the court, based upon a prior order or other reliable evidence, that a parent has engaged in any of the following conduct:

(1)    wilful abandonment that continues for an extended period of time or substantial refusal to perform parenting responsibilities; or

(2)    physical or sexual abuse or a pattern of emotional abuse of the parent, child, or of another person living with that child.

(B)    The parent's residential time with the child must be limited if it is determined by the court, based upon a prior order or other reliable evidence, that the parent resides with a person who has engaged in physical or sexual abuse or a pattern of emotional abuse of the parent, child, or of another person living with that child.

(C)    If a parent has been convicted as an adult of a sexual offense or has been found to be a sexual offender, the court shall restrain the parent from contact with a child that would otherwise be allowed under this subarticle. If a parent resides with an adult who has been convicted of, or with a juvenile who has been adjudicated guilty of, a sexual offense or who has been found to be a perpetrator of sexual abuse, the court shall restrain that parent from contact with the child unless the contact occurs outside the adult or juvenile offender's presence and sufficient provisions are established to protect the child.

(D)    A parent's involvement or conduct may have an adverse effect on the child's best interest, and the court may preclude or limit any provisions of a parenting plan, if any of the following limiting factors are found to exist after a hearing:

(1)    a parent's neglect or substantial nonperformance of parenting responsibilities;

(2)    an emotional or physical impairment that interferes with the parent's performance of parenting responsibilities as defined in Section 20-7-2102;

(3)    an impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting responsibilities;

(4)    the absence or substantial impairment of emotional ties between the parent and the child;

(5)    the abusive use of conflict by the parent that creates the danger of damage to the child's psychological development;

(6)    a parent has withheld from the other parent access to the child for a protracted period without good cause;

(7)    a parent's criminal convictions as they relate to that parent's ability to parent or to the welfare of the child; or

(8)    other factors or conduct as the court expressly finds adverse to the best interests of the child.

(E)    In entering a permanent parenting plan, the court must not draw any presumptions from the provisions of the temporary parenting plan.

(F)(1)    In all Title IV-D child or spousal support cases in which payment of support is to be made by wage withholding and in all cases where payments made by wage withholding based upon support orders that are not Title IV-D support cases but must be made to the family court for collection and disbursement, the court shall only approve a temporary or permanent parenting plan involving the payment of support that complies with the requirements for family court collection and disbursement. Prior to approval of a parenting plan in which payments are to be made directly to the spouse or the family court or to some other person or entity, there must be filed with the plan presented to the court a written certification, under oath if filed by a party, or signed by the party's counsel, stating whether the case for which the plan is to be approved is a Title IV-D support case subject to enforcement by administrative process or is otherwise subject to collection and disbursement by the family court.

(2)    A provision of a parenting plan, agreement, or court order providing for any other payment procedure contrary to collection and disbursement by the family court, whether or not approved by the court, is void and of no effect. No credit for support payments may be given by the family court or the Department of Social Services for child or spousal support payments required by the support order that are made in contravention of these requirements; however, the department may make any necessary adjustments to the balances owed to account for changes in the Title IV-D or central collection and disbursement status of the support case.

(G)    Forms used by parties as parenting plans or adopted by the Office of Court Administration for their use, shall conform to all substantive language requirements established by the Office of Court Administration at such time as parenting plan forms are promulgated and approved by the office.

Section 20-7-2112.    (A)    The court shall approve agreements of the parties allocating parenting responsibilities, or specifying rules, if it finds that the agreement is:

(1)    consistent with any limitations on a parent's decision-making authority mandated by Section 20-7-2110;

(2)    knowing and voluntary; and

(3)    in the best interest of the child and is agreed to by the guardian ad litem, if one has been appointed by the court.

(B)    The court may consider a parent's refusal, without just cause, to attend a court-ordered parental educational seminar in making an award of sole decision-making authority to the other parent. The court shall order sole decision-making to one parent when it finds that:

(1)    a limitation on the other parent's decision-making authority is mandated by Section 20-7-2110;

(2)    both parents are opposed to mutual decision making; or

(3)    one parent is opposed to mutual decision making, and this opposition is reasonable in light of the parties' inability to satisfy the criteria for mutual decision-making authority.

(C)    Except as provided in subsections (A) and (B), the court shall consider the following criteria in allocating decision-making authority:

(1)    the existence of a limitation under Section 20-7-2110;

(2)    the history of participation of each parent in decision making in each of the following areas: physical care, emotional stability, intellectual and moral development, health, education, extracurricular activities, and religion; and whether each parent attended a court-ordered parent education seminar;

(3)    whether the parents have demonstrated the ability and desire to cooperate with one another in decision making regarding the child in each of the following areas: physical care, emotional stability, intellectual and moral development, health, education, extracurricular activities, and religion; and

(4)    the parents geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.

Section 20-7-2114.    (A)    In an action where a permanent parenting plan is or will be entered, each parent shall attend a parent educational seminar as soon as possible after the filing of the complaint. The seminar must educate parents concerning how to protect and enhance the child's emotional development and inform the parents regarding the legal process. The seminar also must include a discussion of mediation, marriage counseling, the judicial process, and common perpetrator attitudes and conduct involving domestic violence. The program may be divided into sessions, which in the aggregate must not be less than four hours in duration. The seminar must be educational in nature and not designed for individual therapy. The minor children must be excluded from attending these sessions. The requirement of attendance at such a seminar may be waived upon motion by either party and the agreement of the court upon the showing of good cause.

(B)    The fees or costs of the educational sessions under this section, which must be reasonable, must be borne by the parties and may be assessed by the court as it considers equitable. These fees may be waived for indigent persons.

(C)    No court may deny the granting of a divorce from the bonds of matrimony for failure of a party or both parties to attend the educational seminar.

Section 20-7-2116.    Solely for the purpose of all other state and federal statutes and any applicable policies of insurance that require a designation or determination of custody, a parenting plan must designate the parent with whom the child is scheduled to reside a majority of the time as the custodian of the child; however, this designation does not affect either parent's rights and responsibilities under the parenting plan. In the absence of such a designation, the parent with whom the child is scheduled to reside a majority of the time is considered to be the custodian for the purposes of such federal and state statutes.

Section 20-7-2118.    (A)    The cost of the mediation required by this subarticle may be assessed as discretionary costs of the action.

(B)(1)    The court may order that all or part of the cost of court-ordered mediation, education, and any related services to resolve family conflict in divorce and post-divorce matters be paid from any available federal, state, and local funds. Eligibility for receipt of these funds must be based on a sliding scale based on a person's ability to pay.

(2)    There is imposed an additional fee of thirty-five dollars on the issuance of a marriage license, which must be paid to the State Treasurer and the fee must be allocated as follows:

(a)    fifteen dollars to the Office of Court Administration for the specific purpose of funding the parenting plan requirements pursuant to this subarticle for the cost of court-ordered mediation, parenting education programs, and any related services to resolve family conflict in divorce and post-divorce matters;

(b)    ten dollars to the Department of Social Services for child abuse prevention services;

(c)    ten dollars to the Department of Social Services for domestic violence services;

(3)    The judicial circuits may apply to the Office of Court Administration for funding to provide the services required by this subarticle.

(4)    A man and a woman who, together or separately, complete a premarital preparation course approved by the Office of Court Administration are exempt from the thirty-five dollar fee otherwise imposed by this section. This course must be not less than four hours and must be completed no more than one year before the date of application for a marriage license. Each individual shall verify completion of the course by filing with the application a valid certificate of completion signed by the course provider, on a form developed by the Office of Court Administration, and the certificate must comply with the following requirements:

(a)    The premarital preparation course may include instruction regarding:

(i)        conflict management;

(ii)    communication skills;

(iii)    financial responsibilities;

(iv)    children and parenting responsibilities; and

(v)    data compiled from available information relating to problems reported by married couples that seek marital or individual counseling.

(b)    The Office of Court Administration shall develop a certificate of completion form to be completed by providers, which must include:

(i)        an attestation of the provider's compliance with the premarital preparation course requirements as set forth in this section;

(ii)    the course instructor's name, address, qualifications, and license number, if any, or, if an official representative of a religious institution, a statement as to relevant training;

(iii)    the name of the participant or participants; and

(iv)    the hours completed and the date of completion.

Each premarital preparation course provider shall furnish each participant who completes the course with a certificate of completion as required by this subsection.

(6)    No monies collected under this section may revert to the general fund of the State, but must be carried forward to be used for the purposes specified in this section.

Section 20-7-2120.    The parenting plan processes established by this subarticle must be evaluated by the Office of Court Administration after the program has been in effect for three years, and the office must submit a report and recommendations for changes, if any, to the General Assembly before October 1, 2010."

SECTION    2.    This act takes effect January 1, 2007.

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