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November 13, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

It seems impossible that, in this day and time, the laws on child custody should be like they are in South Carolina. But they are. This article sketches some of the details (WBTW, 11/8/14).

Laws everywhere are utterly out of touch with the established social science on children’s well-being vis-à-vis parenting time post-divorce. There is by now no serious argument to be made that children are better off with only one parent in their lives, assuming those parents are fit to care for them. But South Carolina not only denies unmarried fathers any role in their children’s lives, it does so even when those dads have stepped forward to claim the rights and obligations of parenthood.

South Carolina law states the custody of an illegitimate child is solely in the natural mother, unless the mother has relinquished her rights. Heather Moore is an Associate Attorney for Johnny Gardner Law Firm.

"If the party's do not end their relationship on good terms, a lot of times, moms will with-hold the child from the father," said Moore.

According to Moore, unless a couple is married or was married at the time of the birth, the mother is not legally obligated to allow visitation. Moore said it's a growing issue in the legal system because the number of children born out of wedlock is increasing…

"You do not have any legal rights whatsoever, to visitation or custody or anything like that unless you establish paternity," said Moore.

Proving paternity is only the first step. Moore said the mother must still consent to visitation and if she doesn't, the father will end up having to go to court for those rights.

There you have it. Unmarried fathers have no rights to their children in South Carolina and, even if they prove paternity, are still under the thumb of their child’s mother. She must consent to his visitation; if she doesn’t, the onus — legal and financial — is on him to prove his worth. Needless to say, no such requirement is placed on the mother.

Of course state authorities will claim that the system was implemented to encourage marriage and marital childbearing, and discourage the opposite. The question they never answer is “How’s that working out?” They never answer it because the answer is “Terribly!” After all, if it were working very well, why do we have almost 41% of births being to unmarried women?

There’s a deep, dark secret I’ll let South Carolina legislators in on; it takes two to get married. I’m sure they’d say they already know that, but you might be surprised at how often I read or hear the rejoinder that if a man wanted parental rights, “He should have married her,” as if it’s his decision alone.

But truly, it takes two. Neither a man nor a woman can marry by themselves. So the issue becomes how the South Carolina law affects marriage rates. My guess is, not very well. Indeed, far from encouraging marriage, it discourages it. That’s because women in the state know very well that they can have a child out of wedlock and suffer none of the stigma that used to be attached to “illegitimacy.” They know their children won’t be designated “bastards” and have to deal with that millstone around their necks.

Now, don’t get me wrong, I’m not in favor of stigmatizing single mothers or their children the way it used to be done. I’m merely pointing out that the absence of that stigma, plus the perfidious nature of South Carolina law have opened the door to rates of out of wedlock childbearing we’ve always known to be detrimental to mothers, their children and society generally.

So South Carolina law tells women they can bear children without a husband and suffer no consequences. But it does more than just that. It tells them they can have complete control over the child, who it sees and who it doesn’t. It tells them they have almost complete control over the father’s parental rights and access to his child. And it tells them that, should they need his money at any time, they can cash in. One year, ten years, twenty years down the line, they can suddenly decide they need help supporting the child and they’ll be treated to hefty judgments for past and future child support from a man they refused to allow to have anything to do with his child. And it’s all perfectly legal.

The result? About 40% of women of childbearing years see no reason to involve the father in the life of his child. The further result? Many of those single fathers, faced with the burden paying for genetic testing and lawyer’s fees simply can’t afford to assert their parental rights. And presto! — single motherhood and a child without a father. The article describes a young man named Brandon Kinsey who finds himself in exactly that situation.

20 year-old Brandon Kinsey has a three week old baby girl, but he hasn't gotten to see her in person. An empty, pink bassinet sits in his living room. Kinsey's and his girlfriend broke up while she was pregnant and she won't allow him to visit.

"I'd love to be there everyday for her, pay child support, have her, even if it's only for every other weekend, I'd take it," said Kinsey.

However, he won't be able to visit unless he decides to go to court…

Kinsey said he plans to take legal action, but it's a costly endeavor. He's received estimates ranging between $3500-7500.

"I'd give every dime to it, just to take the next step and see my daughter," he said.

I don’t know too many 20-year-olds who can pull $7,500 out of their pockets to pay a lawyer to just to see their kid. Unsurprisingly, many can’t. That leaves them in the untenable position of having zero rights to their children, regardless of how much they may want to see them, care for them, love them, mentor them, etc. The law places the power in the mother’s hands and often enough, she’s not inclined to include the dad.

Of course the United States Supreme Court has said many times that states may not deprive fit parents of their children. Indeed, it’s said that the state must prove unfitness before it can abridge parental rights. Needless to say, no one has done any such thing in Brandon Kinsey’s case, but he’s still sitting there at home with the empty bassinet waiting for his daughter who will never come absent the court order he can’t afford to obtain.

The State of South Carolina has a legal system that effectively denies fit fathers their parental rights. It does so by placing those rights in mothers’ hands. As such, it seems to violate Supreme Court precedent.

But worse, it harms everyone involved. I’ve said this often: by encouraging single motherhood, the law encourages poverty on the part of those mothers and of course the children who live with them. Over 40% of single mothers in this country live in poverty. That’s largely because being 100% responsible for childcare 24 hours a day, seven days a week impairs their ability to work and earn. That lack of income, plus the lack of a father have been demonstrated time and again to be bad for children in an astonishingly wide array of outcomes. Those range from poorer mental and physical health to higher crime rates, higher rates of drug and alcohol abuse, lower rates of employment, poorer performance in school, and the like.

And of course fathers suffer the loss of their children. Fathers’ suicide rates spike about eight-fold following a child custody case and rates of depression and other emotional detriments go up as well.

Then there’s the issue of how much money we all spend in taxes to combat the innumerable problems society faces as a result of out-of-wedlock childbearing and single-parent households. The amount is incalculable, but constitutes a serious drain on the public purse, a drain that we could do without.

Single parenthood is, to a large extent, a self-inflicted wound. This society doesn’t have to continue that self-injury. Mountains of social science tell us to stop, but we keep on doing what we’re doing heedless of the consequences to everyone.

South Carolina is one of the worst.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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