The difficulties relocating with children merely because the stepparent is moving

Custodial parents rarely consider whether their spouses are prone to work related relocations when they decide to (re)marry. They simply assume that if their spouse moves they and the children will move. Rarely do they consider the difficulties they might encounter with the other parent if they wish to relocate merely because their own spouse is relocating. However the family court will not routinely bless such relocations.

When such relocations are denied, it can be a disaster for the custodial parent. That parent may have to relinquish custody of the children in order to live with his or her spouse. If that parent has children with the new spouse, that parent may have to choose between living with the children from the previous relationship or the current relationship. These are hard decisions to make, and they become much harder when, as is typical, that parent has not anticipated the issue until it becomes urgent.

The South Carolina Supreme Court’s decision in Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004) set forth four criteria to use in deciding whether to allow a custodial parent to relocate with the children:

(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.

S.C. Code § 63-15-240(B)(16) makes a factor in custody determinations, “whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons.”

Latimer and S.C. Code § 63-15-240(B)(16) tend not to support a relocation requested solely because a stepparent has to move. Where the non-custodial parent has a minimal relationship with the children, or doesn’t live near the children, such relocation requests are typically granted. However, where the non-custodial parent spends substantial time with the children it is often hard to convince a family court judge that a relocation sought solely due to a stepparent’s move is in the children’s best interests. This is especially true when the relocation makes regular visitation difficult or impossible.

There are some folks on the dating scene who are prone to frequent moves. Military members and folks in middle to higher management at large multi-national corporations can expect to move every few years (there’s a reason IBM was jokingly called an acronym for “I’ve Been Moved”). Custodial parents considering romantic relationships with such folks should understand beforehand the pitfalls that may occur should the relationship lead to marriage or children and a subsequent relocation. While the heart may want what the heart wants such parents should give their hearts to folks likely to stay put.  Failing that, such parents should try to seek permission to relocate well before the relocation is imminent. This allows some litigation to proceed before the actual relocation request is made. A court is likely to deny an immediate relocation request when no guardian has investigated and no discovery has been conducted.

If a temporary hearing relocation request is denied when the relocation is immanent, the custodial parent is left with the unpleasant choice of relinquishing custody or living apart from one’s spouse until the case goes to trial (which can often take a year or more). This provides tremendous leverage for the non-custodial parent. I know of numerous cases in which a custodial parent relinquished custody by agreement because that parent was denied permission to relocate on a temporary basis. I have had greater success getting permission to relocate on a temporary basis when a guardian has had the opportunity to investigate and report to the court.

When (re)marrying, few custodial parents consider that they could lose custody or stress their marriage by marrying someone prone to relocation. However it is something custodial parents should consider when choosing romantic companions.

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