South Carolina BAR Journal
SC Lawyer, July 2011, #4.
The Law of Relocation in Family Court
South Carolina LawyerJuly 2011The Law of Relocation in Family CourtBy J. Michael TaylorIn family law, relocation cases are among the toughest to litigate. The relocating parent wants to get on with life after the divorce-to remarry, accept a new job or return to a location where more support exists from family members and friends. During and after the divorce, the stay-behind parent may have made substantial sacrifices to maintain a relationship with the children, arranging a new lifestyle with the access to the children in mind, only to find that the ex-spouse is unilaterally seeking to disrupt those plans.
As a result of these competing interests, emotions frequently run high, causing parents to confuse their wants and needs with the best interests of the children. More often than not, these matters have to be litigated because no middle ground exists. It is a winner-take-all situation.
Further, in deciding relocation cases, the court considers numerous factors that often compete with each other and are continuing to evolve. Indeed, the timing of the events sometimes has an effect on the outcome as well, as the following discussion will show.
When does the relocation issue arise?
In the initial divorce action, the issue of relocation is rarely raised because neither parent wants to inject an additional problem into the mix. In fact, case law would suggest that raising the issue in the initial divorce action could be outcome determinative. In Davis v. Davis, 356 S.C. 132, 588 S.E.2d 102 (2003), the determining factor used by the S.C. Supreme Court to award custody to the father was the mother's announced intention to relocate to Beaufort from Aiken if she were awarded custody. Significantly, this 3-2 ruling was made in the face of the dissent's pointing out that S.C. Code Ann. § 20-7-420(30) (now § 63-3-530 (30))(Supp. 2010) specifically states that a family court may not issue an order that prohibits a custodial parent from moving his residence to a location within the state unless the court finds a compelling reason or the parties agree to such a prohibition.
This decision does not mean the relocating party will always lose: in Rice v. Rice, 335 S.C. 449, 517 S.E.2d 220 (Ct. App. 1999), a mother in a divorce case moved the children from South Carolina to Maine and managed to retain custody. She moved the children before the father filed for divorce and custody, but the issue of relocation was nonetheless a major consideration at the trial and subsequent appeal.
In the vast majority of relocation cases, the parties are already divorced. As a practical matter, a non-custodial parent will rarely move away and seek to take the children with him. Simply put, if the non-custodial parent wants to relocate, that development is rarely going to be considered a valid reason to take the children away from the stay-behind parent, and the children will remain with the latter.
Most commonly it is the parent who already has either full or primary custody who wants to move away with the children. In this situation one of the first things to determine is whether the prior court order prohibits the custodial parent from relocating outside South Carolina without either (a) permission of the other parent or (b) a court order allowing the move. If such a restraining order exists, the moving parent has the burden of proving the relocation is in the best interests of the children.
Specifically, in Pitt v. Olds, 333 S.C. 478, 511 S.E.2d 60 (1999), the parties consented to an order preventing either one of them from permanently moving their child out of state absent a court order allowing it. The mother then petitioned the court to allow her to relocate with the child to Arizona. Id. at 480, 511 S.E.2d at 61. The court held she could not move, because, among other things, she did not meet her burden of proving that there had been a sufficient change in circumstances. Id. at 481-82, 511 S.E.2d at 62.
If the order does not prohibit a move, does the relocating parent have to file an action because the move makes compliance with the visitation schedule difficult, if not impossible? The landmark case of Latimer v. Farmer, 360 S.C. 375, 605 S.E.2d 32 (2004), seems to say the relocating parent does not have that duty:
Mother argues Father seeks to modify the custody agreement [by moving the children away]. However, the custody agreement is silent on whether Father could move out of state with Child. Therefore, there was no agreement on relocation to be modified...