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WHEN AN EX-SPOUSE HAS CUSTODY OF YOUR CHILD AND DECIDES TO MOVE OUT OF STATE. RELOCATION OF A PARENT.

Posted by Jay McMillian | Jul 28, 2017 | 0 Comments

THE MCMILLIAN LAW FIRM - FAMILY LAW AND DIVORCE ATTORNEY SERVING CHARLESTON, SC AND SUMMERVILLE, SC

An issue that is becoming more common in today's society with the “shrinking of the world” is how Family Courts will respond to the parent who has custody of the child and decides to relocate to another state due to employment or other reasons. Of course, the problem that comes up is that the non-custodial parent, who has otherwise held up their end of the bargain by paying support and utilizing visitation, is left behind knowing that the ability to spend time with their child will be greatly diminished. Can the custodial parent move? Can the non-custodial parent stop the move.

The South Carolina Supreme Court addressed this issue in back in 2004 in Latimer v. Farmer. This case involved a father who was awarded custody of a child following a divorce from his wife. The father received an offer for a promotion that required he move with the child from South Carolina to the state of Michigan. Prior to this case, the South Carolina Supreme Court had never established any explicit criteria to address the relocation of the custodial parent.

The South Carolina Supreme Court looked to factors considered in other states that had provided explicit factors to address this narrow issue. The State of South Carolina looked to factors established by the Supreme Courts of Pennsylvania and New York to guide it through its legal analysis. Factors that were cited by New York and Pennsylvania (and discussed by South Carolina) were:

  1. Each parents reason for seeking relocation
  2. The quality of the relationship between the child and each parent
  3. Impact of move on child's relationship with non-custodial parent
  4. The economic, educational, and emotional benefits of the potential move for parent and child.
  5. The suitability of maintaining visitation with the non-custodial parent
  6. Integrity of the motives of the custodial parent and the non-custodial parent

*And it is important to remember that South Carolina Family Courts always have the catch all of “the best interest of the child” that can be used to justify an approval or denial of a move. This was discussed in Latimer v. Farmer.

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The most important aspect of Latimer v. Farmer is that the SC Supreme Court, though saying they are not explicitly adopting a set of criteria, goes on to cite 4 specific factors that they considered in deciding this issue. The Court ruled in favor of allowing the custodial parent to relocate with the child based upon the following factors:

  1. The new job in Michigan would reduce the total time father had to travel for work, was a raise in income, and father had a stable home life with his new wife and was moving to an area where father had numerous members of his extended family living.
  2. Child's moral upbringing benefited by staying with father.
  3. Father had assumed a majority of the homemaking responsibilities for the child and had child actively participating in church.
  4. The father's integrity of motive (why he wanted to move) was free of any motive to inflict harm upon the former spouse and was not outweighed by the mother's wholesome intent to remain close to the child.
  5. The realistic availability of substitute visitation arrangements would still foster a relationship between the child and the non-custodial parent. Though there would be an obviously decline in the frequency of visits, the parents could adopt a visitation plan, despite the distance, that would still allow the relationship to be maintained with the non-custodial parent.

*It is interesting to note that the South Carolina Supreme Court mentions in the footnotes that the mother would have unlimited telephone and computer teleconferencing time with the child when the contact was initiated by the child. This was obviously seen as a viable alternative available now in the modern age that was not always the case in the past.

Furthermore, it is important to note that the Court takes the time to comment in the footnotes that the original custody arrangement forged by the parents at the time of divorce did not contain language forbidding the relocation of the custodial parent.

I do want to disclose that this case is in the minority of opinions in South Carolina that allowed the custodial parent to relocate to another state. The opposite decision is what we see most often in family court in South Carolina. However, the importance of Latimer v. Farmer is not in the result that was reached but in the factors that the Supreme Court laid out to guide attorneys and clients going forward when this issue does arise in South Carolina.

THE MCMILLIAN LAW FIRM - YOUR CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW ATTORNEY

There is a right way and a wrong way to navigate through a separation and a subsequent divorce. I implore that you get assistance of a Charleston, South Carolina Family Law Attorney to help you travel this path and make sure all your legal options and rights are noted and disclosed. 

If you live in Charleston, Mt. Pleasant, Summerville, Moncks Corner, James Island, West Ashley, Folly Beach, Johns Island, Walterboro, or any of the other fine communities of the South Carolina Low Country, do not wait another moment. Act now!! Contact The McMillian Law Firm and scheduled your free Family Law consultation today. 

About the Author

Jay McMillian

Background I chose to build my law practice in the areas of Car Accident and Personal Injury because these areas of the law are the most accurate reflection of my values and my upbringing. Being the son of a breakfast hostess and a retired US Army Sargent turned construction worker, the values instilled upon me by my par...

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Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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