Chapter Twelve Child Support

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Twelve CHILD SUPPORT

A. In General

1. Persons Responsible for Child Support

Mothers and fathers are required to support their children, both legitimate and illegitimate. South Carolina Code Ann. § 63-5-20(A) (2009) provides in part:

Any able-bodied person capable of earning a livelihood who shall, without just cause or excuse, abandon or fail to provide reasonable support to his or her spouse or to his or her minor unmarried legitimate or illegitimate child dependent on him or her shall be deemed guilty of a misdemeanor . . . .
. . . . As used in this section "reasonable support" means an amount of financial assistance which, when combined with the support the member is reasonably capable of providing for himself or herself, will provide a living standard for the member substantially equal to that of the person owing the duty to support. It includes both usual and unusual necessities.

Another statute imposes child support obligations on husbands and wives, oddly, not all parents. South Carolina Code Ann. § 63-5-10 (2009) provides:

A husband or wife declared to be chargeable with the support of his or her spouse or children, if possessed of sufficient means or able to earn such means, may be required to pay for their support a fair and reasonable sum according to his or her means, as may be determined by the court.

Grandparents can be held responsible for supporting grandchildren born to unmarried minors under a statute enacted in 1995. South Carolina Code Ann. § 63-17-350 (2009) provides:

When a child is born to parents, either or both of whom are unmarried and under eighteen years of age, the Child Support Enforcement Division of the State Department of Social Services may pursue support and maintenance of that child from one or both of the child's maternal and paternal grandparents as long as the parent of the child is under eighteen years of age.

This legislation is particularly useful to the Department of Social Services when unmarried minors with children receive AFDC payments even though their parents are capable of contributing to the support of their grandchildren. However, the statute presents a number of issues to be resolved by the courts. It makes no exception for unmarried minors who are emancipated. The statute covers all child support cases in which assistance is sought from the Department of Social Services, not just those in which AFDC is being provided. The statute does not require a determination that the child's parents are unable to provide adequate support before grandparents can be pursued. It is also unclear whether a grandparent with an adult child can be pursued under this statute if the adult child has a baby with a minor (the concluding phrase, "as long as the parent of the child is under eighteen years of age," could be interpreted to exclude grandparents of adult children or to allow them to be pursued as long as either parent is under 18).

A father is not responsible after divorce for the support of his wife's illegitimate child(ren) by another man, who was born before the marriage, unless he has formally adopted the child. Walton v. Walton, 282 S.C. 165, 318 S.E.2d 14 (1984).

A husband who consents for his wife to conceive a child through artificial insemination with the understanding that the child will be treated as his own is the legal father of the child and will be charged with all of the legal responsibilities of paternity, including support. "Written consent is not required. Husband's consent to his wife's impregnation by artificial insemination may be express or it may be implied from conduct which evidences knowledge of the procedure and failure to object." In re Baby Doe, 291 S.C. 389, 392-392, 353 S.E.2d 877, 878-798 (1987) (citing R.S. v. R.S., 9 Kan. App.2d 39, 670 P.2d 923 (1983)). Doe affirmed the trial court's order holding the husband responsible for the support of a child born to his wife as a result of artificial insemination with sperm donated by an anonymous third-party donor.

It is inappropriate to require a custodial parent to pay child support to a noncustodial parent while the child is in the physical custody of the noncustodial parent, as during extended visitation. Avin v. Avin, 272 S.C. 514, 252 S.E.2d 888 (1979) (reversing the trial court's award of support to the noncustodial parent during periods of visitation). The rationale is that the custodial parent has a fixed obligation to maintain a place of residence, which obligation does not materially diminish due to the temporary absence of the child.

2. Transferring Property to Avoid Paying Child Support

Any transfer of income or property for the purpose of avoiding a child support obligation is "clearly and utterly void" just like any other conveyances to defraud creditors. S.C. Code Ann. § 27-23-10 (Supp.). In 1997, the legislature added the following language to the rather awkwardly drafted fraudulent conveyances statute. It creates a rebuttable presumption of fraudulent intent to avoid paying child support in a number of specified situations:

(B) A showing of two or more of the following creates a rebuttable presumption that a child support debtor intended to transfer income or property to avoid payment to a child support creditor:

(1) a close relationship between the transferor and the transferee;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was not disclosed or was concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was substantially all of the debtor's assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was not reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) the transfer occurred shortly before or after a substantial debt was incurred; and
(11) there was a departure from the usual method of business.

3. Consequences of Nonsupport

Nonsupport of a child is a basis for terminating parental rights. See the chapter on termination of parental rights.

A parent who does not provide support for a child may be denied a share of an intestate child's estate. South Carolina Code Ann. § 62-2-114 (Supp.) allows the probate court to deny or limit either or both parent's entitlement to a share of the proceeds of an intestate child's estate "if the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority."

A parent who does not provide support for a child may be denied a share of damages awarded by a jury in a wrongful death action arising from the death of a child. South Carolina Code Ann. § 15-51-40 (Supp.) allows the probate court to deny or limit either or both parents' entitlement for a share of the damages awarded by a jury in a wrongful death action "if the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority.''

A parent who does not provide support for a child may be denied workers' compensation death benefits upon the death of the child. South Carolina Code Ann. § 42-9-140(F) (Supp.) allows the Workers' Compensation Commission to deny or limit either or both parents' entitlement for a share of workers' compensation benefits which would otherwise be payable to the mother and father of a deceased worker "if the commission determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority."

The three statutes mentioned above were enacted in response to Adkins, et al. v. Comcar Industries, Inc., 316 S.C. 149, 447 S.E.2d 228 (Ct. App. 1994), aff'd, 323 S.C. 409, 475 S.E.2d 762 (1996). Section 42-9-140 effectively annuls the holding of Adkins, in which a deceased child's mother disputed the father's entitlement to share in workers' compensation death benefits. The father paid only $20 in child support during his son's life (the parties separated a year after his birth), he had minimal contact with his son, and admitted he had seen his son only three times over the last 12 years of his son's life. However, no legal action had been taken to terminate his parental rights. The Workers' Compensation Commission ruled that the man was not a "father" within the meaning of S.C. Code § 42-9-140 (Supp.) and, consequently, he was not entitled to receive any benefits. The circuit court and the Court of Appeals disagreed. The Court of Appeals held that the father was entitled to claim benefits for himself. The Court further ruled that the commission did not have the discretion to apportion the benefits based on the facts of the case and the father was, therefore, entitled to 50% of the benefits.

4. Court Must Allocate Between Spousal and Child Support

South Carolina Code Ann. § 20-3-150 (Supp.) was amended in June, 2002, to read:

If the court awards the custody of the children to the spouse receiving alimony[,] the court, by its decree, unless good cause to the contrary be shown, shall allocate any award for permanent alimony and support between the supported spouse and the children and upon the remarriage or continued cohabitation of the supported spouse the amount fixed in the decree for his or her support shall cease, and no further alimony payments may be required from the supporting spouse.
For purposes of this subsection

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