Who has Custody When the Parents Were Never Married to Each Other and There is no Court Order?

When a child is born out of wedlock, the mother has custody until there is a court order stating otherwise. In this circumstance, S.C. Code § 63-17-20(B) applies:

Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child.  If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.

However once either parent seeks court involvement regarding the child’s custody, there is no presumption over who should obtain custody.  As noted in S.C. Code § 63-5-30:

The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children;  and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor.  Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court.  Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.

The “Tender Years Doctrine” has been legislatively abolished.  S.C. Code Ann. § 63-15-10.  This means that it is no longer presumed that a mother will be awarded custody of an infant child.

Mothers of children born out of wedlock do not need to do anything to establish their custodial rights.  Fathers of children born out of wedlock have no judicially enforceable right to custody or visitation until they seek court intervention and obtain a court order of custody or visitation. However once a father seeks court involvement there is no presumption that the mother should be awarded custody.