Can I Move Away With My Children?

A job offer in another state. A new spouse whose work is somewhere else. A parent who wants to go home to family who can actually help. PCS orders. Relocation questions usually arrive with a deadline attached: the start date, the closing date, the reporting date.

The parent who wants to move asks can I go? The parent who would be left behind asks can I stop this? South Carolina has no relocation statute that answers either question. It has a best-interests test, the custody order already in place, and jurisdiction rules that follow the children across state lines.

We tell clients plainly that these are among the hardest custody cases there are. Most custody disputes have a middle ground: another weekend, a different summer split, an extra overnight. Distance usually doesn’t. The school year happens in one place or the other, and even the parent who wins a relocation case gives something up. So does the child. That is why a relocation deserves a plan, not an improvisation.

There is no splitting the difference on geography.

No statute, no presumption: the Latimer best-interests test

For two decades South Carolina courts operated under a presumption against relocation, traced to McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982). In 2004 the Supreme Court abandoned it. In Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004), the Court described the problem candidly: relocation cases “bring into direct conflict a custodial parent’s freedom to move to another state without permission from the court and the noncustodial parent’s right to continue his or her relationship with the child as established before the custodial parent’s relocation.” Id. at 380, 602 S.E.2d at 34. It then held: “Insofar as McAlister established a presumption against relocation, we hereby overrule it.” Among its reasons: such restrictions “have become antiquated in our increasingly transient society.”

What replaced the presumption is the standard that governs every custody question:

Latimer did not adopt a formal checklist. The Court said it did “not endorse or specifically approve” any set of factors, but it offered the tests used in New York and Pennsylvania “for consideration.” South Carolina courts have relied on those factors ever since, and lawyers on both sides argue from them. Here is what they ask and what kind of evidence answers them:

The statute adds its own layer. S.C. Code Ann. § 63-15-240(B), which applies whenever a court is “issuing or modifying a custody order,” lists best-interest factors that matter in a move: the child’s relationships with each parent, siblings, and grandparents; each parent’s efforts “to encourage the continuing parent-child relationship between the child and the other parent”; the child’s adjustment to home, school, and community; and “the stability of the child’s existing and proposed residences.” One factor speaks directly to moves: “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.” S.C. Code Ann. § 63-15-240(B)(16).

The Court of Appeals has also stated the principle from the other direction: because “[f]orcing a person to live in a particular area encroaches upon the liberty of an individual to live in the place of his or her choice,” the court’s authority to prohibit an out-of-state move “should be exercised sparingly.” Gandy v. Gandy, 442 S.C. 340, 898 S.E.2d 208 (Ct. App. 2024) (quoting Rice v. Rice, 335 S.C. 449, 453–54, 517 S.E.2d 220, 222 (Ct. App. 1999) (quoting VanName v. VanName, 308 S.C. 516, 519, 419 S.E.2d 373, 374 (Ct. App. 1992))), cert. granted in part and remanded on other grounds, Op. No. 28239 (S.C. filed Nov. 6, 2024).

Two different cases: relocation at the start, or after the final order

The same Latimer factors apply in two quite different procedural settings, and the difference determines who has to prove what.

Relocation in an initial custody case

When parents are separating, or unmarried parents are in court over custody for the first time, there is no prior order to modify. The question of where the children will live is simply part of the custody decision. In McComb v. Conard, 394 S.C. 416, 715 S.E.2d 662 (Ct. App. 2011), a mother who had been the child’s primary caregiver asked to move to Florida, where she was eligible to teach, her new husband worked, and she had family. The Court of Appeals approved the family court’s use of the Latimer factors even though no custody order yet existed: “Although this is not the typical relocation case in which a parent who has custody seeks to move with the child, the same analysis should apply.”

Gandy followed the same path in 2024. In a divorce case, the family court awarded the mother primary custody and allowed her to move the children to another state where she had a job offer with benefits, a rent-free home behind her parents’ house, daily family help with the children, one child’s pulmonologist five minutes away, and a single school for all the children. The Court of Appeals affirmed the custody and relocation rulings. The family court had called it an “exceptionally difficult decision,” because all the experts said the children would be better off staying near both parents, but the Latimer factors favored the parent who had carried the primary caretaking. The appellate court also repeated an older rule: “[A] parent cannot be refused custody simply because he/she intends to take the child to a distant state.” Gandy, 442 S.C. 340, 898 S.E.2d 208 (quoting Marshall v. Marshall, 282 S.C. 534, 541, 320 S.E.2d 44, 49 (Ct. App. 1984)).

In an initial case, nobody has to prove a “change in circumstances,” because nothing has been decided yet. The relocation question is folded into the ordinary best-interests determination.

Relocation after a final order

Once a final custody order exists, the picture changes. If the parent left behind responds to a move by seeking custody, that parent carries the modification burden: a substantial change in circumstances affecting the child’s welfare, and proof that a change of custody is in the child’s best interests. Our article on modifying custody and child support explains that two-step showing in detail.

Here is the important part for relocation: the move alone does not satisfy the first step. Latimer held: “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.” The Court added: “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.”

The burden can also fall on the parent who is moving. Latimer distinguished Pitt v. Olds, 333 S.C. 478, 511 S.E.2d 60 (1999), in which the relocating parent was the one asking the court to rewrite the visitation schedule. That parent was seeking the modification, and so that parent bore the burden. In practice, whoever asks the court to change the existing order carries the burden, which is worth thinking through before anyone files.

Start with your order: notice, consent, and distance clauses

Before any case law, read your order. Most custody orders and settlement agreements we see contain a relocation clause, built from some combination of:

• A distance trigger. The clause applies to a move of more than a set number of miles from the current residence (50 miles is common, and some are shorter), or to any move that changes the child’s school district.
• Written notice. Thirty, sixty, or ninety days before the move, often by certified mail, sometimes stating the new address and a proposed revised schedule.
• Consent or court approval. Some clauses require the other parent’s written agreement before an out-of-state move. Others require a court order if the parents cannot agree.

That clause is enforceable like every other term. Moving without the required notice or consent invites a contempt action (see enforcing family court orders). Worse, it hands the other parent the best evidence available under § 63-15-240(B)(6): proof of how the moving parent treats court orders and the other parent’s relationship with the child.

Three other rules shape the analysis:

In-state moves get extra protection. The family 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.” S.C. Code Ann. § 63-3-530(A)(30). This statute does not bar a court from adjusting the schedule after an in-state move. It bars a court from forbidding the move itself without a compelling reason or an agreement.

A silent order is not a prohibition. In Latimer, the custody agreement “is silent on whether Father could move out of state with Child. Therefore, there was no agreement on relocation to be modified.” A silent order does not prevent the other parent from filing for a change of custody, but it does affect who carries the burden.

No order at all is its own situation. Between married parents with no custody order, “neither parent has any right paramount to the right of the other concerning the custody of the minor.” S.C. Code Ann. § 63-5-30. Between unmarried parents, “[u]nless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child.” S.C. Code Ann. § 63-17-20(B). That gives an unmarried mother legal room to move before any order. But the 100-mile factor in § 63-15-240(B)(16) and the jurisdiction rules discussed below mean that a move made before the custody case will be weighed in that case.

Temporary relief: stopping a move, or getting permission, before trial

Relocation cases rarely wait for a final hearing. Both sides use the family court’s temporary relief procedure under Rule 21, SCRFC, which allows a party to seek an order that governs “for the period of time during which the case is pending.”

The parent opposing the move asks for a temporary order keeping the children’s residence and school where they are while the case proceeds. The parent seeking the move asks for temporary permission, usually with a proposed long-distance schedule attached. A true emergency, such as a credible threat to leave with the children before the court can act, may justify ex parte relief under Rule 21(g). Latimer itself began with “an ex parte order preventing Father from moving” out of state; after a full hearing, the move was approved. Our emergency custody article explains how the ex parte, expedited, and ordinary temporary tracks differ and what each requires.

Three practical points about the temporary stage:

1. Temporary hearings are decided on affidavits. The evidence is mostly written: affidavits, financial declarations, and required documents such as a parenting plan, with strict page limits. A relocation affidavit that walks through each Latimer factor with documents attached (the offer letter, the school information, the proposed schedule, the travel costs) does far more than one that argues the parent’s virtues.
2. The temporary order creates a record. If the children move under a temporary order and do well, or stay and do well, the final hearing will be decided against that background.
3. A guardian ad Litem is likely, and the guardian’s investigation takes time. In contested relocation cases, the court frequently appoints a guardian to investigate both homes. Sometimes that includes the proposed new one; the Latimer guardian asked for information about the new town, its schools, and photographs of the home. In our experience, when a parent objects promptly, judges are often reluctant to let the children go until the guardian has looked into whether the move is being made for genuine reasons and whether the children will be all right. For the parent opposing the move, that time keeps the status quo in place. For both parents, it is a reason to negotiate.

Military families: PCS orders and deployments

Military families relocate on the government’s schedule, and South Carolina law treats some of those moves differently. It matters which kind of move you have.

An accompanied PCS move is analyzed as a relocation. South Carolina’s version of the Uniform Deployed Parents Custody and Visitation Act defines “deployment” as the movement of a service member for more than ninety days but fewer than eighteen months under an order that is unaccompanied, “does not authorize dependent travel,” or “otherwise does not permit the movement of family members to that location.” S.C. Code Ann. § 63-15-502(9). A permanent change of station on which the family is authorized to go along does not fit that definition. It is a relocation, and the Latimer analysis applies. PCS orders rarely come with much warning, but the order’s relocation clause applies to service members like everyone else, so give notice as early as you can.

Deployments carry special protections. When orders do separate the service member from the family, two statutes come into play:

• “[A] court may not consider a parent’s past deployment or possible future deployment in itself in determining the best interest of the child,” although it may consider any “significant impact” of the deployment on the child. S.C. Code Ann. § 63-15-512.
• Under the Military Parent Equal Protection Act, a military parent’s “absence or relocation because of military service must not be the sole factor supporting a change in circumstance,” and no final modification may be entered until ninety days after the parent is released from qualifying service. S.C. Code Ann. § 63-5-920(A).

A deploying parent must also give the other parent notice in a record within seven days after receiving notice of deployment, or as soon as reasonably possible if the circumstances of service prevent it, and each parent must share a plan for their custodial responsibilities. § 63-15-508. See also our military divorce page.

Building a long-distance parenting plan

The factor that often decides relocation cases is the last one: whether “realistic substitute visitation arrangements” can “adequately foster an ongoing relationship” between the child and the parent who stays. A moving parent who arrives without a concrete plan has not addressed the factor that matters most.

Long-distance plans tend to trade frequency for length. Here are the building blocks we see in negotiated and court-ordered plans:

South Carolina law expects electronic contact: when a court orders joint custody, “each parent should facilitate opportunities for reasonable telephonic and electronic communication between the minor child and the other parent, as appropriate,” as the court provides. S.C. Code Ann. § 63-15-250(B). The same duty applies to the custodial parent under a sole-custody order, except in cases of abuse, neglect, or abandonment. § 63-15-250(A). The order affirmed in Latimer, entered before that statute existed, gave the parent left behind unlimited telephone and computer contact when the child initiated it, plus scheduled calls and video sessions each week. Video calls do not replace time together, and courts do not treat them as a substitute.

Not every move is a cross-country move. A move of a few hours is drivable for weekends but not for school. Those cases tend to produce different schedules: more weekends each month for the parent who stays (sometimes three), exchanges at a halfway point or driving split between the parents, and more of the summer. A parent who has moved farther away from the children can sometimes get extra time in exchange for the distance.

Good orders also plan for what happens next. If one parent is permitted to move, the order can say what schedule applies if the other parent later moves within a set distance of the child. For example, it can provide that the original school-year schedule comes back. We draft contingency clauses like these routinely; the only requirement is that they be clear. A parent who later wants to undo a bargain that anticipated exactly that event has a much harder argument. Address child support in the same order, too, because a long-distance schedule shifts overnights and therefore the support calculation.

Jurisdiction after the move: the UCCJEA

A move across state lines raises a question that is easy to overlook: which state’s court decides custody from now on? The answer comes from the Uniform Child Custody Jurisdiction and Enforcement Act, S.C. Code Ann. §§ 63-15-300 to -394, and it often surprises the parent who moved.

If a South Carolina order already exists, the case stays here. The South Carolina court that made the custody determination keeps “exclusive, continuing jurisdiction” until a court determines that the child and parents no longer have a significant connection with South Carolina and substantial evidence about the child is no longer available here, or that the child and both parents have all moved away. S.C. Code Ann. § 63-15-332(A). If one parent still lives in South Carolina, the move by itself does not take the case out of South Carolina. Future modification and enforcement fights will usually be heard here, which is why travel to hearings belongs in the moving parent’s planning.

South Carolina can decline to hear the case in favor of another state. A South Carolina court may decline jurisdiction if it is an “inconvenient forum” and another state’s court is “a more appropriate forum.” § 63-15-342(A). The statute directs the court to consider, among other things, “the length of time the child has resided outside this State,” the distance between the courts, the parties’ finances, any agreement between the parties, and “the nature and location of the evidence.” § 63-15-342(B). Once a child has lived in the new state for years, these motions become realistic.

Before any order, the six-month home-state rule controls. A child’s “home state” is the state where the child “lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” § 63-15-302(7). South Carolina keeps initial jurisdiction for six months after the child leaves, so long as a parent continues to live here. § 63-15-330(A)(1). A parent who stays behind and waits too long to file can find that the custody case belongs to the new state. Forum shopping by moving children is also limited. When a parent invokes a South Carolina court’s jurisdiction that exists only because of “unjustifiable conduct,” the court generally must decline that jurisdiction and assess fees and expenses against the party who invoked it. § 63-15-344.

The practical point: where the children live today does not settle which court will decide their custody. Our modification article covers these rules in more detail.

What persuades judges, and what does not

The fact patterns in our relocation matters vary: a primary parent remarrying someone whose work is in another state, a parent moving home to family for help with the children, a job or remote-work opportunity, a military transfer, a move within the State that changes the children’s school. Two lessons recur.

First, a relocation dispute is not only about the law. The law sets the frame, but most of these cases end in agreements, and agreements reflect leverage: how settled the children are where they live now, how strong the moving parent’s reasons look, how long a contested case will take, and what it will cost. A child who has been in the same school for years, with friends and activities, gives the parent opposing the move real leverage. School-age children generally hate moving, and a move in the middle of high school is harder still. A common middle ground is that the moving parent may go, but the child finishes the school year (or high school) where they are, and the moving parent takes summers and holidays.

Second, the evidence that wins is consistent.

What persuades:

• A concrete reason, with documents. An offer letter with salary and benefits beats “better opportunities.” A school comparison with real information beats “better schools.” Relatives who will provide actual childcare, named and available, beat “my family is there.”
• A history of supporting the other parent’s relationship. The parent who has delivered the children on time, shared information, and encouraged the relationship is believed when promising to keep doing so from a distance. The parent who has not is not believed.
• A specific long-distance plan, proposed before anyone asks. It should say who travels, when, and at whose cost.
• Proper notice. A parent who followed the order’s notice clause starts with credibility. Where the other parent received notice and did nothing to stop the move, that matters too.

What hurts:

• Moving first and litigating later. Section 63-15-240(B)(16) makes a recent move of more than 100 miles a factor in its own right, and an unannounced move undercuts every promise about co-parenting.
• Motives that look like distance for its own sake. Courts examine “the integrity of the motives” of both parents. A move designed to escape the other parent’s involvement, and an objection designed to gain leverage, are both visible to the judge.
• Overstating the case. The parent opposing a move must show more than the inevitable cost of distance.
• Involving the children in the fight. In Gandy, the Court of Appeals noted testimony that both parents had improperly tried to influence the children and talk with them about the case, including the father telling the children he did not want them to move. Asking children to choose is held against the parent who does it.

In our experience, the parent with the better plan usually does better than the parent with the better argument.

Do’s and don’ts before you move

If you want to move:

• Do read your order’s relocation clause, and calendar the notice deadline counted backward from your move date.
• Do give written notice the way the order requires, and keep proof that you sent it.
• Do try to negotiate a long-distance schedule and present it as a consent order. An agreement approved by the court is enforceable. A handshake cannot be enforced through contempt.
• Do assemble documents that address each Latimer factor: offer letter, housing, schools, medical care, childcare, and travel costs.
• Do think ahead if a move is likely someday. The parent best placed to relocate later is usually the one with primary custody, a legitimate reason, a job lined up, and a notice clause followed to the letter. An abrupt move undercuts all four.
• Don’t enroll the children in a new school, sign a lease you can’t break, or move the children before the notice period runs or a court rules, if the order requires either.
• Don’t assume that a silent order, or no order, means the move can’t be challenged. It means the challenge will look different.

If the other parent wants to move:

• Do respond promptly and in writing. Silence can look like acquiescence, and under the UCCJEA, delay has consequences for which state hears the case.
• Do document your actual involvement: the visitation you have exercised, school and medical participation, and activities.
• Do decide what you are really after: stopping the move, or securing the best schedule if it happens. Think through what a long-distance schedule would look like either way. Judges ask, and “I haven’t thought about it” is a poor answer.
• Don’t rely on self-help, such as keeping the children past your parenting time to prevent a move. That invites contempt and can hurt you on the factors that matter most.