Can you move with your children if you have custody?
Do you need the court’s permission? Do you need the noncustodial parent’s permission? The answer depends on where you plan on moving – if you plan on moving with your children but you will remain in SC, the noncustodial parent probably cannot stop you, but the court might modify its previous orders regarding visitation.
If you plan on moving with your children to another state after a divorce, however, you may have to prove to the court that it is in the child’s best interest to move with you and that it will not affect the child’s ongoing relationship with the noncustodial parent.
Relocation within State: Can You Move with Your Children if You Stay in SC?
If you are the custodial parent, and you want to move with your children to another location in SC, the family court cannot prevent your move unless 1) there is a compelling reason or 2) you and the other parent have agreed to prohibit relocation.
…the 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.
If you are relocating with your children within SC and the noncustodial parent objects, however, the court can modify your visitation to accommodate the noncustodial parent. Depending on the circumstances, the court could make changes including:
- Increased or reduced visitation,
- Changes in the dates and times of visitation,
- Who is responsible for transporting the children for visitation, or
- Who pays for transportation to visitation.
In most cases, however, the court will allow a custodial parent to relocate within the state of SC unless there is a compelling reason to deny the parent’s request.
Relocation to Another State: Can You Move with Your Children to Another State?
What if you want to move to another state, though? Can you just pack up and move to another state with the children if the noncustodial parent objects?
There used to be a presumption against a custodial parent moving with their children out of state, but the SC Supreme Court held in 2004 in Latimer v. Farmer that there is no longer a presumption against out-of-state relocation.
Instead, the family court should consider factors to determine whether the move is in the children’s best interest.
Although the Court did not “endorse or specifically approve any of these factors,” they listed factors used by New York and Pennsylvania courts and then applied four of them to determine that it was in the child’s best interest to allow the father to relocate to Michigan and deny the mother’s request for a change of custody:
- The potential advantages of the proposed move (the father’s new job allows him to spend more time with the child, the father has a stable family network in Michigan, and the child’s moral upbringing is enhanced by the father because he takes her to church and reads bible stories to her),
- The move would improve the quality of life for the father and child, and the move is not the result of a whim on the part of the father (the child’s quality of life would be improved by the stable family environment in Michigan),
- The integrity of the motives of each parent in seeking to move and seeking to prevent the move did not weigh in favor of father or mother (neither’s motivations were spiteful or vindictive), and
- There is a realistic substitute visitation arrangement that adequately fosters an ongoing relationship between the mother and child (despite the distance involved, the mother has extensive contact with the child).
Although these are not the only factors family courts can consider, the bottom line is that the move must be in the child’s best interests. If the move is in the child’s best interests, taking into consideration the above factors, the court should allow the custodial parent to relocate out of state.
Is the Custodial Parent’s Relocation to Another State a Change in Circumstances that Would Justify a Change in Custody?
If the custodial parent is relocating to another state, is that a change in circumstances that would justify a change in custody to the non-relocating parent?
It could be – for example, if the custodial parent decides to move out of state despite a family court’s order prohibiting it. In most cases, however, if the court decides that the out-of-state move is in the child’s best interests, the move alone will not justify a change in custody.
The SC Supreme Court held in Latimer that a change in the custodial parent’s residence is not automatically a substantial change in circumstances affecting the welfare of the child, and, although relocation may be one factor for the family court to consider, relocation alone is not a sufficient change in circumstances to justify a change in custody:
We decline to hold relocation in itself is a substantial change in circumstance affecting the welfare of a child. Relocation is one factor in considering a change in circumstances, but is not alone a sufficient change in circumstances. One location may not necessarily affect the best interests of the child as would another. The effect of relocation on the child’s best interest is highly fact specific. It should not be assumed that merely relocating and potentially burdening the non-custodial parent’s visitation rights always negatively affects the child’s best interests.
If you are a custodial parent who wants to relocate out of state with your child, you should be prepared to present evidence showing why it is in your child’s best interest to relocate with you (keeping in mind the factors from Latimer).
If you are a non-custodial parent who wants to prevent the custodial parent from moving out-of-state with your child, you should be prepared to present evidence showing 1) why it is not in the child’s best interest to relocate with the custodial parent (keeping in mind the Latimer factors) and 2) why the move would be a change in circumstances that affects the child’s welfare (justifying a change in custody if the other parent moves out-of-state).
Call your Myrtle Beach child custody attorney at Axelrod and Associates today at 843-353-3449 or fill out our contact form if you have questions about moving out of state with your child or if you need to modify or enforce alimony, child support, child custody, or child visitation orders.