Very little can be as stressful as a move, especially over long distances. Having to deal with a protesting former spouse on top of the daily stresses of packing and moving can be nearly too much to bear. Conversely, very little can be as heart-wrenching as the prospect of watching your child move hundreds of miles away at the whim of your parental counterpart.
At the LaMantia Law Firm, we have been on both sides of such a controversy. Truly, relocation issues are among the most emotional and stressful in the practice of family law. Let our experience work to quiet your mind.
While the South Carolina Supreme Court in 1982 established a presumption against relocation in determining whether to allow a custodial parent to relocate with a minor child, that presumption has been overruled, as the Court felt that it was wrong to always presume that relocation was antithetical to the best interests of the child stuck in the middle. In all child custody cases, including but not limited to relocation cases, the best interests and welfare of the child are the controlling considerations.
In 2004, the South Carolina Supreme Court in Latimer v. Farmer set forth a two-prong analysis, both of which must be satisfied in relocation cases in which a change of custody is sought by the non-relocating parent so that the child may remain and avoid moving with the relocating parent. According to the Court, the non-custodial parent seeking a change in custody must show:
- That there has been a substantial change in circumstances affecting the welfare of the child.
- That the change in custody, allowing the child to remain, is in the overall best interests of the child.
Further, according to the Court in Latimer, so long as the underlying custody agreement says nothing with regard to parental relocation, the burden of satisfying the aforementioned two requirements rests squarely on the parent challenging the relocation. Indeed, the parent hoping that their child will remain must prove both a substantial change in circumstances, and that allowing the child to stay behind would be in the child's best interests.
A change in circumstances affecting the welfare of the child must have occurred subsequent to the entry of the divorce decree or original custody arrangement, and that change must be enough that it substantially affects the interests and welfare of the child, not merely the wishes or convenience of the parties involved. Just as the remarriage of a custodial parent is not, in itself, a substantial change in circumstance which affects the welfare of a child to the extent that a change in custody is warranted, the Court in Latimer specifically stated that relocation is “not alone a sufficient change in circumstances."
When it comes to ascertaining whether a change in custody and, more specifically, a change of custody due to a relocation, serves the best interests of a child, unlike many other states, South Carolina has not specifically delineated factors to consider in such an analysis. In Latimer, however, without endorsing any particular state's approach to ascertaining the best interests of a child, the Court did explore factors as laid out by other states, including New York, Pennsylvania, Montana and Florida. By distilling those eestates' factors alongside a comprehensive 12-factor test set forth by the New Jersey Supreme Court in Baures v. Lewis, it would seem that eight factors arise for consideration by this Court:
- The overall integrity of each parent's reasons for seeking or opposing the move.
- Whether the custodial and non-custodial parents are fit to care and provide for the minor child.
- The degree to which the custodial parents and the child's life may be enhanced economically, emotionally and educationally by the move due to educational, health and leisure opportunities compared with what is available here.
- Whether an alternative visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child.
- The quality of the relationships between the child and the custodial and non-custodial parents.
- The likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed.
- The effect of the move on extended family relationships here and in the new location.
- Whether the non-custodial parent has the ability to relocate.
As intensely emotional as relocation proceedings are, and as fact-specific as the cases tend to be, it is highly suggested that parents either seeking to relocate or prevent their child from relocating with the other parents consult with an experienced attorney. At the LaMantia Law Firm, we understand, and we are eager to help.