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Obtaining Visitation

Legal paternity is the legal connection between father and child and is the premise for every parental right that a parent has including the right to seek visitation and/or custody. So before pursuing legal visitation, an unwed father must establish legal paternity.

Spending consistent, quality time with your child is an important part of being a responsible father. Even so, sometimes the child's mother will not allow visitation for the father. There are practical, legal steps to take to help improve visitation.

  1. If you have a strained relationship with the mother, seek help to improve communication skills

  2. Pay your child support. It is more difficult to obtain visitation rights when child support payments are not up-to-date.

  3. Arrange for a safe and child-friendly environment in which to spend time with your child.

In addition to practical steps, there are legal steps for obtaining visitation.

How does a father establish legal visitation rights?

Once legal paternity has been established, fathers may seek legal visitation rights. The majority of fatherhood program participants establish legal paternity through a DSS/CSE administration hearing. However, the role played by state agencies in general and specifically DSS/CSE in assisting fathers to establish legal visitation rights is often misunderstood. Although DSS/CSE can establish legal paternity and establish a child support order, DSS/CSE the agency receives no federal funds to establish legal visitation rights for the father. In fact, DSS/CSE is not permitted to utilize any of their current funding for visitation issues without first receiving a written waiver from the federal government. There are no state agencies that assist fathers with establishing legal visitation rights in South Carolina. Legal aid assistance is also unavailable to any father who exceeds the minimal income guidelines that have been mandated. Generally speaking, if the father works a full-time job at minimum wage, then he exceeds these very minimal guidelines. For these fathers, the fact that they are working to consistently pay child support, ironically, disqualifies them from receiving any legal assistance to establish their legal visitation rights. The end result is that most low-income fathers seeking visitation rights must hire a private attorney to establish it. Since this process is beyond the financial means of many low-income fathers, most continue to rely solely on the goodwill of the custodial parent for contact with their children. Without a legal visitation order, low-income fathers have no recourse if the custodial parent terminates the visitation schedule. Unfortunately, many fathers retaliate and withhold child support payments; however, that action only worsens the father's legal problems.

Use of the pro se visitation complaint

The term Pro Se simply refers to the filing of legal paperwork by a party to the action.

In other words, the father is not represented by an attorney, but files the legal paperwork himself to establish legal visitation rights. In the past, most Family Court judges were unwilling to entertain pro se complaints for legal visitation in their courtrooms because they did not fully understand the limited choices available to low-income fathers. Increased awareness and education of the judiciary on this issue, has caused more Family Court judges throughout the state to allowing pro se complaints for visitation to be filed and heard in their courtrooms. In addition, under the leadership of our State Supreme Court, Family Court judges have been reminded that pro se petitioners who correctly file their legal paperwork have every legal right to a court hearing on the issue before the court. Click here to receive instructions to complete a pro se packet for visitation that a father can use for establishing his legal visitation rights as a pro se litigant.

Where does the father file his pro se visitation complaint? 

Complaints for visitation, in general, must be filed in the county/state in which the child resides. Under most scenarios, this means that the father will file the visitation complaint in the same county where the child support action commenced. However, the unfortunate father whose child has moved out of state must file their legal paperwork in the county and state where the child currently resides.

"Parenting Time" Guidelines

Prior to filing the pro se complaint, the father seeking visitation should consider what he is looking for from the Family Court in terms of a visitation schedule. The visitation schedule should be a practical schedule that takes into account the age and needs of the child, along with the expected work hours of the father. Parenting Time Guidelines are available which can assist fathers to determine age appropriate visitation schedules. These guidelines highlight that the needs of the child must be first and foremost in the mind of the father. In essence, this means that a visitation schedule requested for an infant will differ significantly from a visitation schedule for a school aged child. You can review sample Parenting Time Guidelines that fathers can use when requesting a suitable visitation schedule from the court. 

Final Visitation Order

Finally, it is important that the language in the final visitation order specify the visitation schedule. If it is not clear, the court is powerless to enforce a vague Visitation Order. The following wording appeared in a Visitation Order, "father is entitled to reasonable and liberal visitation rights." Although it sounds good, it is unenforceable because no specific visitation schedule has been outlined. Since the father may not have the skills to prepare the order as detailed as needed, he can offer the guidelines to the court as an attachment to the Final Order. The judge can then reference the parenting time guidelines and relevant sections that were decided upon in the Final Order.

Connection between Child Support and Visitation

The current law views child support and visitation as two totally separate issues.

Therefore, the payment history of the father should not be an issue at the visitation hearing. Likewise, the Court will not entertain the father's complaints regarding his lack of visitation at child support hearings. When visitation is brought up by fathers during hearings, many interpret the Court to be uncaring; this is not necessarily true. The reality is that the issue of visitation is not before the Court on that day. However, if the father has a legal visitation order in which the child spends more than 109 overnights with the father (30% of the child's time), the father may request to have his child support obligation calculated differently using the Shared Parenting Worksheet. The use of this worksheet will result in a lower child support obligation each month because it takes into account the time spent with the father. A copy of the Shared Parenting Worksheet may be obtained at any regional DSS/CSE office. For the father, it is yet another incentive to formalize the visitation schedule through a legal visitation order.

What if the father has legal visitation but is being denied his visitation rights by the mother?

Current South Carolina law permits a father to file a Pro Se Affidavit stating that his visitation rights are being denied. This form affidavit is available at every Family Court clerk's office in the state. The Court will schedule a Rule to Show Cause hearing asking the mother to show cause as to why the father is being denied visitation. If the mother is found in contempt, the penalties are up to one year in jail and/or a $1500.00 fine. The availability of a similar affidavit will vary from state to state. However, most states have in place a similar process. Fathers must simply contact the Family Court where the original visitation order was issued and inquire as to the process practiced by that particular county.