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COMMITTEE REPORT
March 1, 2006
S. 137
S. Printed 3/1/06--H. [SEC 3/2/06 3:26 PM]
Read the first time April 27, 2005.
To whom was referred a Bill (S. 137) to amend Section 20-7-420 of the 1976 Code, relating to the jurisdiction of the family court, to provide that the family court may order that custody of a minor, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/SECTION 1. Section 20-7-420 of the 1976 Code is amended by adding the following appropriately numbered subsection to read:
"( ) To order custody of a minor child to the de facto custodian under the circumstances specified in Section 20-7-1540."
SECTION 2. Subarticle 1, Article 11, Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-1540. (A) For purposes of this section, 'de facto custodian' means, unless the context requires otherwise, a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:
(1) has resided with the person for a period of six months or more if the child is under three years of age; or
(2) has resided with the person for a period of one year or more if the child is three years of age or older.
Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child must not be included in determining whether the child has resided with the person for the required minimum period.
(B) A person is not a de facto custodian of a child until the court determines by clear and convincing evidence that the person meets the definition of de facto custodian with respect to that child. If the court determines a person is a de facto custodian of a child, that person has standing to seek visitation or custody of that child.
(C) The family court may grant visitation or custody of a child to the de facto custodian if it finds by clear and convincing evidence that the child's natural parents are unfit or that other compelling circumstances exist.
(D) No proceeding to establish whether a person is a de facto custodian may be brought concerning a child in the custody of the Department of Social Services.
(E) If the court has determined by clear and convincing evidence that a person is a de facto custodian, the court must join that person in the action as a party needed for just adjudication under the South Carolina Rules of Civil Procedure."
SECTION 3. This act takes effect upon approval by the Governor./
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
TO AMEND SECTION 20-7-420 OF THE 1976 CODE, RELATING TO THE JURISDICTION OF THE FAMILY COURT, TO PROVIDE THAT THE FAMILY COURT MAY ORDER THAT CUSTODY OF A MINOR CHILD BE AWARDED TO THE CHILD'S DE FACTO CUSTODIAN UNDER CERTAIN CIRCUMSTANCES; AND TO ADD SECTION 20-7-1540, TO DEFINE "DE FACTO CUSTODIAN" AND TO SPECIFY THE CIRCUMSTANCES UNDER WHICH CUSTODY OF A MINOR CHILD MAY BE AWARDED TO A DE FACTO CUSTODIAN.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 20-7-420 of the 1976 Code is amended by adding the following appropriately numbered subsection to read:
"( ) To order custody of a minor child to the grandparent or grandparents under the circumstances specified in Section 20-7-1540."
SECTION 2. Subarticle 1, Article 11, Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-1540. (A) As used in this section:
'De facto custodian' means, unless the context requires otherwise, a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who: (1) has resided with the person for a period of six months or more if the child is under three years of age, or (2) has resided with the person for a period of one year or more if the child is three years of age or older. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.
(B) A person is not a de facto custodian until the court determines by clear and convincing evidence that the person meets the definition of de facto custodian. If the court determines a person is a de facto custodian, the court must give the person the same standing in custody matters that is given to each parent.
(C) No proceeding to establish whether a person is a de facto custodian may be brought concerning a child in the custody of the Department of Social Services.
(D) The court must determine custody in accordance with the best interests of the child, and equal consideration must be given to each parent and to any de facto custodian. The court must consider all relevant factors including, but not limited to, the:
(1) wishes of the child as to his custodian, pursuant to Section 20-7-1515;
(2) interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(3) child's adjustment to his home, school, and community;
(4) mental and physical health of all parties and children involved;
(5) information, records, and evidence of domestic violence;
(6) extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(7) intent of the parent or parents in having placed the child with a de facto custodian; and
(8) circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent seeking custody was previously prevented from doing so as a result of domestic violence and whether the child was placed with a de facto custodian to allow the parent seeking custody to seek employment, work, or attend school.
(E) The abandonment of the family residence by a party must not be considered where the party was physically harmed or was seriously threatened with physical harm by his or her spouse, when the harm or threat of harm was causally related to the abandonment.
(F) The court may grant joint custody to the child's parents, or to the child's parents and a de facto custodian, if it is in the best interest of the child, pursuant to Section 20-7-420(42).
(G) If the court grants custody to a de facto custodian, the de facto custodian has legal custody under the laws of South Carolina.
(H) If the court has determined by clear and convincing evidence that a person is a de facto custodian, the court must join that person in the action as a party needed for just adjudication under the South Carolina Rules of Civil Procedure."
SECTION 3. This act takes effect upon approval by the Governor.
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