We are a mobile society and often the custodial parent will need to file a motion in the family court requesting approval for a relocation. Any request to relocate should be supported by documentation demonstrating that you have thought the matter through and that the move is in the child's best interest. To prepare your modification of child custody case, you may wish to include the following:
NEIGHBORHOOD & SCHOOL
Know where you will be living and describe the benefits of the neighborhood and the schools the child will attend (photos are helpful);
Research any daycare facilities that you intend to use and include as part of your motion to relocate a brochure or contract from the provider;
If you are moving to improve yourself financially, include information regarding your new job or your planned education including any employment contracts or offers, benefit information or brochures.
If there are any health or medical considerations regarding the relocation, include those as part of your motion. For example, if you are moving to a warmer climate that benefits asthma (yours or the child's) include that in your motion.
If the Court allows the relocation, it often requires the party moving to pay more of the transportation costs related to visitation.
There is no "standard" visitation schedule when the visitation must occur at a distance. Often, however, the courts grant the non-custodial parent extended access times for fall breaks, spring breaks, Christmas breaks and summer months. Agreeing to extended visitation will improve your chances of the court continuing to allow you to have custody of the children.
"In all child custody cases, including relocation cases, the controlling considerations are the [children's] welfare and best interests." Id. at 381, 602 S.E.2d at 35. When a change in custody is sought, the non-custodial parent must show a change in circumstances occurring subsequent to the entry of the divorce decree. Id. This change of circumstances must be such that it would substantially affect the interests and welfare of the children, not merely the parties, their wishes, or their convenience. Sharpe v. Sharpe, 256 S.C. 517, 521, 183 S.E.2d 325, 327 (1971). Additionally, " it is incumbent upon the moving party to show that the welfare of the [children] requires the court to ignore and set aside the agreement of the parties incorporated in the decree." Id.
Because the overriding concern in all child custody matters is the best interests of the children, when a change in custody is sought by the noncustodial parent, that parent must establish (1) there has been a substantial change in circumstances affecting the welfare of the children and (2) a change in custody is in the overall best interests of the children. Latimer, 360 S.C. at 381, 602 S.E.2d at 35.
A change in the custodial parent's residence is not in itself a substantial change in circumstances affecting the welfare [384 S.C. 106] of the children that justifies a change in custody. Id. at 382, 602 S.E.2d at 35.
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 [children] as would another. The effect of relocation on the [children's] best interest[s] 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 [children's] best interests.
While South Carolina has not delineated criteria for evaluating whether the best interests of the children are served in relocation cases, our Supreme Court has acknowledged, without endorsing or specifically approving, factors other states consider when making this determination. Id. For example, our Supreme Court stated the New York Court of Appeals looks at (1) each parent's reason for seeking or opposing the relocation; (2) the relationship between the children and each parent; (3) the impact of the relocation on the quality of the children's future contact with the non-custodial parent; (4) the economic, emotional, and educational enhancements of the move; and (5) the feasibility of preserving the children's relationship with the non-custodial parent through visitation arrangements. Id. at 382-83, 602 S.E.2d at 35-36 (citing Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145, 148 (1996)). Additionally, our Supreme Court noted Pennsylvania courts require the following considerations in relocation cases: (1) the economic and other potential advantages of the move; (2) the likelihood the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a whim of the custodial parent; (3) the motives behind the parent's reasons for seeking or opposing the move; and (4) the availability of a realistic substitute visitation arrangement that will adequately foster an ongoing relationship between the non-custodial parent and the children. Id. at 383, 602 S.E.2d at 36 (citing Gancas v. Schultz, 453 Pa.Super. 324, 683 A.2d 1207, 1210 (1996)).
Applying some of these factors to the present case, while keeping in mind the overriding consideration of the children's best interests is paramount, we affirm the family court's order allowing custody of the children to remain with Mother even if she relocates with the children to Kansas City."
It is unusual for the Appeals Court to reverse the Family Court judge's decision in a custody case. In addition to the expense, that is one reason why few custody cases are appealed. However, it does happen and Burgess v. Arnold, Op. No. 5531 (S.C. Ct. App. filed January 24, 2018) is one such case. It reaffirmed that the best interests of the child is always the overriding factor in a custody dispute.
Further, this decision states that "joint or divided custody should only be awarded [when] there are exceptional
circumstances." quoting Patel v. Patel, 359 S.C. 515, 528, 599 S.E.2d 114, 121 (2004). The 30 days to appeal has not expired as of this writing.
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