How Does the Family Court Decide Whether to Allow a Custodial Parent to Relocate with the Children?

South Carolina statutory law makes it exceedingly difficult for a non-custodial parent to prevent the custodial parent from relocating with the children in-state.  S.C. Code Ann. § 63-3-530 (30), states:

[T]he court may not issue an order which prohibits a custodial parent from moving his residence to a location within the State unless the court finds a compelling reason or unless the parties have agreed to such a prohibition.

While the family courts often adjusts the non-custodial parent’s visitation or responsibility for visitation transportation when the custodial parent relocates in-state (as an accommodation to the non-custodial parent), absent an agreement the court almost never prohibits such an in-state relocation.

The relevant factors for a proposed out-of-state relocation are quite different. In 2004, the South Carolina Supreme Court’s decision in Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004),  made it easier for custodial parents to relocate with their children out-of-state.  Prior to Latimer, the case of McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982), created a presumption against relocation.  Latimer abolished this presumption against relocation out-of-state, instituting a four-part test in deciding whether to allow the relocation:

(1)       the potential advantages of the proposed move, economic or otherwise;

(2)       the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a whim on the part of the custodial parent;

(3)       the integrity of the motives of both the custodial and noncustodial parent in seeking the move or seeking to prevent it;

(4)       and the availability of realistic substitute visitation arrangements that will adequately foster an ongoing relationship between the child and the noncustodial parent.

These four factors are what the family courts now look to in deciding whether to allow an out-of-state relocation.  In trying to obtain the court’s permission to relocate with a child out-of-state, the custodial parent must focus on showing that these four factors support the proposed relocation.  In trying to oppose a request by the custodial parent to relocate with the children out-of-state, the non-custodial parent should focus on showing that these factors weigh against the proposed relocation.

Out-of-state relocation cases tend to be some of the most contentious in family court, as both parents’ abilities to live where they chose and the continuity of their ongoing relationship with their children can be significantly altered by the outcome.  A decision to attempt to relocate with children out-of-state should not be undertaken lightly, especially when the non-custodial parent has a significant relationship with the children.  Further the resolution of contested out-of-state relocation cases almost always benefit from the services of an experienced family law attorney.

If you are seeking to relocate with your child, prevent the other parent from relocating with your child, or in the midst of relocation litigation, you are welcome to click here to contact Mr. Forman’s office.