The difficulties relocating with children merely because the stepparent is moving

Posted Wednesday, December 16th, 2015 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific

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.

4 thoughts on The difficulties relocating with children merely because the stepparent is moving

  1. Greg: This is a first for me. I disagree with your analysis of “Latimer.”

    This is from the opinion:

    Some states recognize a presumption in favor of the custodial parent’s right to relocate. See e.g., In re Custody of D.M.G. & T.J.G., 287 Mont. 120, 951 P.2d 1377, 1383 (1998); In re Marriage of Burgess, 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473 (1996). Since our decision in McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982), the courts in this state have been guided by a presumption against relocation in determining whether to allow a custodial parent to relocate with a minor child. We take this opportunity to review this presumption. Insofar as McAlister established a presumption against relocation, we hereby overrule it for the following reasons.

    I can’t add emphasis in this comment but if I could, I would underline the last sentence. I read this case as completely reversing the previous law in this state and that this case stands for the position that any custodial parent can move and it is up to the non-custodial parent to prove the move is somehow detrimental to the child.

    If you have successfully kept custodial parents from moving with children, after this case, I would love to have those circumstances. I strongly disagree with, what I believe to to be, the holding in this case.

    Because I have no children of my own, I believe I tend to think like a child sometimes, rather than like a parent. Meaning, I still have that idea that it should always be about “me,” the child, not the parent. My “go to” line is that just as a sex offender should immediately be crossed off the list of potential companions, so should a prospect that has a career, family or other interests that might require a custodial parent to take children far away from the other parent. That person just shouldn’t make it through screening for a second date.

    My opinions and judgment are clouded by a very difficult case
    I had that started prior to the Latimer decision, and ended after that case was published. The holding in Latimer was the basis for taking a child, unjustifiably in my opinion, half way across the country, away from a loving parent.

    Just because there are other states that have adopted the Latimer rule, before us, does not make them correct. I think SC had it right before Latimer.

    While I recognize that citizens have rights to move about these United States freely; the rights of the child to have two loving parents close by, should trump either adult!

    I look forward to many responses and hope that I will learn something from you and others on this issue of law, that still stings every time my mind re-visits that one really difficult relocation case.

  2. MJ Goodwin says:

    I have heard judges say that Latimer stands for the idea that the presumption against moving is no longer the state of the law in SC. Then that same judge may keep the parent from moving by saying that the child cannot go. I say it is very fact specific and depends in large part on the reasons for the move and how old the child is, as well as how much time the non-custodial parent is spending with the child pre-move. As with much of family law in SC, it is very subjective and subject to the personal beliefs and corresponding legal interpretations of a third party. Like alimony, it is a difficult area in which to advise a client on possible outcomes. The best way, of course, is not to marry someone who is known to be subject to moving. But as we all know, our clients find fact patterns that do not fit comfortably into the law as we know it. That is why they need us.

  3. Ambertoups says:

    Even I a had heard the same..

  4. Matthew Kurtz says:

    There may be several reasons to shift home from one place to another like transfer, job change ,going to abroad ,for professional reasons or the personal ones, people do relocate often in their lives. When it comes to movers selection I have seen the work of mover NYC in my uncles house, and i am very impressed by their work and moving procedure.

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