When a divorce includes minor children, the parties continue to be tied together long after the separation. In the final divorce decree, the court creates a structure for how the parties will co-parent their minor children and how custody and visitation will be followed.
While the parenting plan prescribed by the court does its best to avoid future conflict, neither the court nor the parties can anticipate future events. Custody, which gives each parent the right to make big decisions for the child, can possibly be exercised while the two parents live far apart. However, physical custody and visitation often requires the parents to remain in close proximity to each other.
Should one party want to move away from where the parties currently reside, what happens?
In South Carolina, prior to 2004, the court carried a presumption against allowing a parent to relocate with the child. Luckily for the relocating parent, the court, in Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004), abolished the presumption in favor of weighing relevant factors. The court decided a four factor approach to determine whether the relocation should be approved.
First, the court weighs the advantages of the relocation to the moving parent and the child against the disadvantages to the non relocating parent. How beneficial to the relocating parent is this move? Is it for a job? Is the relocation for a new spouse? Will they be closer to family?
Second, the court determines whether the quality of life for the child and relocating parent would be substantially improved by the move. For example, if the parent is relocating for a new higher paying job, the standard of living may be raised significantly. Maybe the child would be locating to a better school district with more opportunities.
Third, the court looks at the motives of the relocating parent to move with the child as well as the non relocating parent and why they are contesting the relocation. The court will attempt to determine whether the relocating parent is trying to take the child away from the non relocating parent. Likewise the court will look to see if the non relocating parent is attempting to stop the relocation as retaliation.
Finally, the court determines if there are realistic ways to continue meaningful visitation with the non relocating parent. In some cases the parties will be able to keep the same visitation schedule. If that is not the case, the court will determine that there is an alternative schedule to keep both parents as active participants in the child’s life. The court may decide that prolonged visits over school holidays would be sufficient, or that the relocating party would be responsible to covering the cost of getting the child to the non relocating parent for visitation.
Of course, as with most custody determinations, the court will keep in mind what decision would be in the best interests of the child. Relocation can be a complicated hurdle to overcome. Contact us today to find out how our Charleston attorneys at Ayers Family Law, LLC can guide you through the process.
