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What Factors Can Courts Not Consider When Deciding Child Custody Issues?

Posted by J. Benjamin Stevens | May 20, 2014 | 0 Comments

Anyone who is facing a child custody or visitation case has likely wondered what factors judges consider when grappling with these kinds of issues. The reality is that an array of factors can be weighed when deciding child custody and visitation cases. However, the better question might be to ask what things cannot be considered. After working through a long list of factors that South Carolina Family Court judges can consider when deciding child custody issues, it may seem hard to believe but there are actually a few items that judges are legally not allowed to take into account.

The first thing that courts cannot consider is gender. Not too many years ago, gender not only could be considered by judges, but it was often times seen as an important factor. Gender figured into the custody equation under the “Tender Years Doctrine,” which assumed that young children, absent a specific reason, should be with their mothers. This biased rule often left fathers out in the cold and unfairly denied capable and loving men time with their children. Thankfully, the Tender Years Doctrine was legally abolished in S.C. Code Section 63-15-10, and parents of either gender now have equal standing before the law when seeking custody.

The other factor that our Family Courts in South Carolina are not permitted to consider is race. Though this might seem obvious, the issue actually ended up before the U.S. Supreme Court (Palmore v. Sidoti) after a Florida family court decided that the social stigma surrounding race could be used as a basis for a child custody decision. The Supreme Court intervened and reversed the decision, holding that it was unconstitutional for the court to consider race when deciding custody issues.

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J. Benjamin Stevens

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