As family law attorneys in Charleston, we deal with cases involving a parent moving a child out of South Carolina without the other parent’s permission. Some of these cases can be heartbreaking, especially when one parent relocates the child and tries to hide from the other parent.
In this article, we explain South Carolina’s laws regarding child relocation within the state and away from the state, what happens when there is no custody order, what constitutes parental kidnapping, and what you can do if the other parent removes your child. So can a parent move a child out of South Carolina without permission?
Quick Answer: It depends on the parents’ custody rights, any court order, and whether a custody case has been filed and served. If no order exists or a case isn’t pending, a parent with custody rights may generally move with the child, but the other parent can ask the court to intervene. A move cannot violate a custody order, and taking a child to conceal the child or evade an order or pending custody case can be a crime.
Table of Contents
- Can a Parent Move a Child Within South Carolina Without Permission?
- What If There Is No Custody Order in South Carolina?
- Can a Parent Take a Child Out of South Carolina Without Permission?
- Can I Be Charged with Kidnapping for Removing My Child From South Carolina?
- What Can I Do if My Child Is Removed from South Carolina by the Other Parent?
- How Can a Charleston Family Lawyer Help With a Child Relocation Case?
Can a Parent Move a Child Within South Carolina Without Permission?
Generally, yes. S.C. Code § 63-3-530(A)(30) provides that 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.”
Even so, a move within South Carolina can still affect the other parent’s visitation schedule. If the move makes the existing schedule unworkable, either parent may ask the family court to modify custody or visitation.
What If There Is No Custody Order in South Carolina?
If no custody order exists and no custody case has been filed, the answer depends on the parents’ circumstances. When a child is born to married parents, both parents generally have equal rights to the child until a court rules otherwise. When a child is born to unmarried parents, South Carolina law generally gives the mother sole custody unless a court orders otherwise or the mother relinquishes her rights. If paternity has been acknowledged or adjudicated, the father may ask the court for custody or visitation.
In either situation, a parent who is concerned about a move should not wait. You can file a custody action and ask for a temporary custody order that addresses whether the child may leave the state. Our article on South Carolina’s custody laws explains how judges decide custody.
Timing also matters for jurisdiction. Once a child has lived in another state for six consecutive months, that state may become the child’s home state for an initial custody case. But South Carolina may still have jurisdiction under the rules governing recent home states or existing custody orders. We explain related jurisdictional issues in our article on whether you can get a divorce in South Carolina if your spouse lives in another state.
Can a Parent Take a Child Out of South Carolina Without Permission?
The short answer is “maybe.” If a custody order restricts relocation or the move would conflict with the order’s visitation schedule, the moving parent should obtain a court order modifying the existing order before moving the child.
If an order does not restrict the move, relocation does not necessarily require advance court permission, but the other parent may seek a change in custody or visitation. Taking a child to conceal the child or avoid a custody order or a custody proceeding that has been filed and served can also constitute custodial interference when the statutory requirements are met.
Our appellate courts have described relocation cases as some “of the most challenging problems our family courts encounter.” The effect of relocation on a child is highly fact-specific, so no two cases are exactly alike. Ultimately, when resolving a relocation dispute, the family court must decide whether the move is in the child’s best interests.
In making that decision, the family court may consider the factors discussed in Latimer v. Farmer. The following table summarizes them; Latimer offered these considerations as examples, not a mandatory checklist:
| Factor | What the Court Considers |
|---|---|
| Reasons for the move | Each parent’s reasons for seeking or opposing the move |
| Relationships | The quality of the child’s relationship with each parent |
| Future contact | How the move affects the child’s future contact with the noncustodial parent |
| Benefits of the move | Whether the move will improve the custodial parent’s and child’s lives economically, emotionally, and educationally, and is not a whim |
| Substitute visitation | Whether realistic substitute visitation can preserve the relationship with the noncustodial parent |
| Visitation history | The extent to which visitation rights have been allowed and exercised |
| Compliance | Whether the moving parent is likely to comply with substitute visitation once out of South Carolina |
| Transportation costs | Whether one or both parents can afford the cost of transportation |
The court weighs these considerations in the full context of the proposed move, always prioritizing the child’s best interests. For example, in the Latimer case, the custodial parent relocated for a job opportunity that would give him more time with the child and place the child closer to family members. The court upheld the move. A request to relocate may also require changing the existing visitation schedule; a parent seeking to change custody must meet the separate requirements for a custody modification.
Can I Be Charged with Kidnapping for Removing My Child From South Carolina?
The short answer is “maybe,” depending on the circumstances. S.C. Code § 16-17-495 is the criminal statute that addresses custodial interference, often called parental kidnapping. It applies to a child under 16 years old in two main situations:
- when a court has awarded custody to someone else, or custody is established by statute, and you take or transport the child from the legal custodian with the intent to conceal the child or violate or avoid the custody order or statute; and
- when a custody case has been filed and served, and you take or transport the child with the intent to conceal the child or circumvent or avoid the custody proceeding.
In the second situation, if a person keeps the child outside South Carolina for more than 72 hours without notice to a legal custodian, the law permits an inference that the person intended to violate that part of the statute. The following table summarizes the penalties:
| Circumstance | Classification | Maximum Prison Term |
|---|---|---|
| Taking or transporting the child in violation of the custody order or statute, or to avoid a pending custody case, as described above | Felony | Up to 5 years, a fine, or both |
| Returning the child to the legal custodian or to the jurisdiction of the court where the custody petition was filed within three days of the violation | Misdemeanor | Up to 3 years, a fine, or both |
| Using physical force or the threat of physical force in the unlawful taking or transportation | Felony | Up to 10 years, a fine, or both |
Whether the person is convicted of a felony or a misdemeanor, the court may also order payment of necessary travel and other reasonable expenses, including attorney’s fees, incurred by the party entitled to custody, a witness, or law enforcement.
What Can I Do if My Child Is Removed from South Carolina by the Other Parent?
If the other parent has taken your child from South Carolina, stay calm, think rationally, and pursue every available option to safely return your child. Here are several steps you might consider:
- Contact law enforcement: If the removal violates a custody order, occurred after you filed and served a custody case and appears intended to evade it, or you believe your child may be in immediate danger, contact your local police or sheriff’s department.
- File for an emergency custody order: If the child is in immediate danger or harm, an attorney can help you ask the family court for emergency custody or an order requiring the child’s return.
- Contact the National Center for Missing & Exploited Children (NCMEC): NCMEC can assist law enforcement in searching for a missing child. Its hotline is 1-800-THE-LOST (1-800-843-5678).
- Contact the U.S. Department of State: If you suspect your child has been taken out of the country, contact the U.S. Department of State’s Office of Children’s Issues, which assists with international parental child abduction cases.
How Can a Charleston Family Lawyer Help With a Child Relocation Case?
If the other parent removed your child from South Carolina, or you are considering moving with your child, speak with a family court lawyer about your options before you act. A lawyer can seek an emergency or temporary order, negotiate a relocation agreement and a new visitation schedule, or present your case to the court.
The attorneys at Futeral & Nelson have represented parents in custody and relocation cases in Charleston, Mount Pleasant, North Charleston, Summerville, and throughout the Lowcountry since 2003. Call us at 843-284-5500 to discuss your case and your options.
