United States – South Carolina

How can you prepare child relocation from or within the United States – South Carolina? What if your child has been relocated without your consent?

The United States are a member state of the Hague Convention on Child Abduction.

We will explain what this means for your options.

The relevant U.S. laws are:

  • the Parental Kidnapping Prevention Act and
  • the Uniform Child Custody Jurisdiction and Enforcement Act
  • the International Child Abduction Remedies Act (ICARA).

Parental authority: United States – South Carolina

Decision making model

Authority

Whether or not both parents have rights of custody, is a matter of state law.

In South Carolina, when a child is born out of wedlock the biological father has no legal rights to the child, until he establishes legal paternity.

When a child is born within marriage, the male spouse of the mother is automatically designated as having legal paternity whether or not he is the biological father. If the couple is unmarried or the biological father is someone other than the mother’s spouse, the biological father must first establish legal paternity.

Once the father has established legal paternity, he can ask for a visitation order or joint legal custody.

 

Custody after divorce

In most cases, the parents will have joint legal custody. Parents are expected to keep the other parent fully informed and to consult with the other parent about all major decisions effecting the child. When the court has to make a choice, this will be based on the child’s best interest. When the child is twelve years old or older, the child can express it’s preference, but it does not get to decide. This is up to the court.

Most parents will also have joint physical custody, usually with a schedule. This can be an alternate weekend schedule, alternate weeks, or holidays schedule or any other schedule that fits the situation of the family.

Usually one parent will have primary physical child custody, which means that this is where the child has it’s residential adress. The other parent will usually have a visitation arrangement. If one child has it’s residential adress with one parent and the other child with the other parent, this is called split custody. Shared physical custody means the child will spend half of the time with one parent and half of the time with the other parent.

Traveling with children: United States – South Carolina

Passport Issuance

Passport issuance to minors (Two Parent Consent Law), 22 U.S.C. 213n and 22 C.F.R. 51.28, requires both parents consent to the issuance of U.S. passports for children under the age of 16, unless the applying parent or legal guardian can establish that consent of both parents is not required.     

Travel consent form

If you want to travel abroad with your child, you need permission from the other parent, if the other parent also has custody.

Decision making model

Child relocation: United States – South Carolina

Relocating within South Carolina

If the custodial parent wants to relocate with the child within the state, the court can only prohibit this, if one of these two conditions is met (SC Code Section 63-3-350(30)):

1) there is a compelling reason, or
2) both parents have previously agreed not to relocate

When the court does not prohibit the relocation, the court can still make changes to the visitatoin arrangement. The court can change the visitation schedule or make changes concerning who is responsible for the transportation.

    Relocating to another state

    The court can allow a relocation to another state, if the relocating parent can show that the move is in the child’s best interest and will not prevent an ongoing relationship between the child and the noncustodial parent.

    Since the 2004 Latimer v. Farmer decision of the SC Suprme Court,  there is no longer a presumption against relocation and that the courts must consider whether the move is in the child’s best interest.

    Some of the factors the court will consider are:

    • The potential advantages of the proposed move
    • The potential to improve the quality of life for both custodial parent and child
    • The “integrity of the motives” of the custodial parent in moving or of the noncustodial parent in trying to prevent the move
    • The potential for “a realistic substitute visitation arrangement that will adequately foster an ongoing relationship” between the noncustodial parent and child.

    Preventing relocation

    The other parent can ask the court to prohibit the relocation, or ask for a change of custody.

    If a non-custodial parent believes the relocation is not in the best interests of the child, he or she can ask the court to modify the existing custody arrangement. That way the child can stay with that parent in stead of relocating with the relocating parent (South Carolina Children’s Code, Title 63, Chapter 15.)   

    In order to be succesfull, the objecting parent must demonstrate that (Farmer v. Farmer (S.C. 2004):

    1. There has been a substantial change in circumstances affecting the welfare of the child, and
    2. A change in custody is in the child’s overall best interests. (See .)

    The factors that the court will take in to consideration are a.o.:

    1. The pros and cons of the move;
    2. Whether or not the move will improve the child’s quality of life
    3. The reasons for the move (or the other parent’s opposition to the move); and
    4. Realistic possibilities for visitation that continue to support a parent-child relationship.

    Uniform Child Custody Jurisdiction and Enforcement Act

    The Uniform Child Custody Jurisdiction and Enforcement Act is a Federal Act. It determines which states’ courts have jurisdiction if a parent disputes custody in more than one location.

    Generally, if a child relocates out of state with a parent, the old state remains the child’s “home state” for six months after the move, as long as one parent still resides in that state. This means that all court actions during the first six months after the move must occur in the old state. If there is no parenting plan in place and the relocating parent moves out of Washington, but the other parent files a court case in the “home state,” then the relocating parent must respond to the action and return to the state of Washington to handle the matter.

    Child abduction: United States – South Carolina

    Decision making model

    The United States are a member state of the Hague Convention on Child Abduction.

    The United States have non-binding memoranda of understanding with: Egypt, Lebanon and Jordan.

    The relevant U.S. laws are:

    • the Parental Kidnapping Prevention Act and
    • the Uniform Child Custody Jurisdiction and Enforcement Act
    • the International Child Abduction Remedies Act (ICARA).

    For more information, you can contact the Office of Children’s Issues, Bureau of Consular Affairs, U.S. Department of State in Washington. The USCA (U.S. Central Authority) will contact the alleged abducting parent to seek a voluntary return. The USCA will also offer mediation to the parents. The alleged abducting parent will be given a 2 week period to respond. If he or she responds, the USCA will work with the requesting Central Authority and all other appropriate entities in the U.S. to facilitate a voluntary return.

    The USCA will also help to locate your child if necessary.

    Prevention

    In the U.S. there are several means to prevent the removal of re-abduction of a child:

    • the child’s passport(s) to be deposited with authorities
    • the alleged abductor’s passport to be deposited with authorities
    • obtaining orders toe prevent the removal of the child
    • issuing border and/or port alerts
    • requiring the alleged abductor to pay a bond/deposit
    • temporary placement of child in institutional care
    • entering a child into the Children’s Passport Issuance Alert Program (CPIAP)

    In the U.S. all state and Federal courts have jurisdiction to handle a case under the Hague Convention. The judges can use the Guide for Judges, which is a guide from 2015 about Hague Convention cases.

    The procedure can take more then 12 weeks, depending on the circumstances of the case. However, afther 6 weeks you can ask the USCA to seek a report on the status of court actions when no decisions has been reached by the end of six weeks.

    Whether or not the child will have an opportunity to be heard depends on the particular case and is up to the descretion of the judge. The judge can decide to have a direct interview with the child, to ask for an independent report or appoint a legal representitive for the child. The HCCH Country Profile about the United States specifically mentions that when a guardian ad litem is appointed, he or she should represent the views of the child, rather then the best interest of the child, because a Convention proceedings is not a best interests determination. When a child is interviewd by the court, this is called ‘a Lincoln hearing’. Only the court, the child’s attorney and the child are present. Normally, the parent’s attorneys may submit questions for consideration by the court. The parents and their attorneys have no acces to the transcript of the child interview. 

    In the U.S. the time limit within which an appeal must be lodged varies from one State to another. The duration of the appeal varies. The appeal procedure can take less than 3 months, but also longer than 6 months.

    When a U.S. court orders the return of the child, ICARA requires the judge to order the abducting parent to pay the travel costs relating to the return of the child, unless the abducting parent can establish that such an order would be ‘clearly inapproprate’. The court can issue a ‘pick-up order’, and order f.i. a law enforcement entity to pick up the child from a certain location, such as the school or the home and escort the child to the other parent or an appropriate authority.

    When the abducting parent does not follow the court order to return the child, the court can hold that parent in contempt. This may include fines and/or jail sentence until the terms of the order are fulfilled. The wrongful removal of the child is a criminal offence.

    The USCA will provide information about mediation and refer the parties to mediators.

    In the return proceedings legal representation is not required. The USCA will provide contact details of attorneys who in some cases are willing to provide free legal aid or reduced rate legal assistance. The attorneys can decide this for themselves, bases on their own investigation of the case and the parent’s financial situation. There are several organizations who provode legal aid. The USCA will provide the contact information.

    Criminal law : United States – South Carolina

    In the United States, when the abducting parent does not follow the court order to return the child, the court can hold that parent in contempt. This may include fines and/or jail sentence until the terms of the order are fulfilled.

    The wrongful removal of the child is a criminal offence.

    In South Carolina, parents who are guilty of violating a child custody order can be found guilty of Custodial Interference. A parent who takes a child unlawfully could face felony charges, including fines and imprisonment up to ten years (Section 16-17-495 of the South Carolina Criminal Code).

    Decision making model

    Relevant websites : United States – South Carolina

    Permission form to travel with children

    www.eforms.com : Minor (Child) Travel Consent Form

     

    Relevant laws

    www.travel.stat.gov : International Child Abduction Remedies Act (ICARA)

    www.law.justia.com : Section 16-17-495 of the South Carolina Criminal Code 

     

    Central Authority

    The Office of Children’s Issues, Bureau of Consq.ular Affairs, U.S. Department of State in Washington.

    www.travel.state.gov : The United States Central Authority

     

    Guide for judges

    Federal Judicial Centre : A guide for judges

     

    Annual report

    www.travel.state.gov : Annual report on International Child Abduction 2021

     

    Blogs : United States – South Carolina

     

    International Child Abduction

    International Child Abduction

    By Johanthan W. Lounsburry - United States -  Each year some parents are faced with a devastating reality: their partner has taken their child to another country and is refusing to return.  They are left-behind and at a loss of what do.  Not only is this an...

    Relevant case law : United States 

    Golan v. Saada

    Golan v. Saada

    Supreme Court of the United States, June 15, 2022 The Supreme Court ruled that a court is not required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that...

    Monasky v. Taglieri

    Monasky v. Taglieri

    Supreme Court of the United States, February 25 2020 In Monasky v. Taglieri the Supreme Court rejected Monasky’s argument that an actual agreement was required in order to establish shared parental intent. Monasky is a U.S. citizen. Taglieri an Italian citizen. They...

    Chafin v. Chafin

    Chafin v. Chafin

    Supreme Court of the United States, February 19, 2013 In Chafin v. Chafin the U.S. Supreme Court decided that an appeal procedure does not become moot if the child is returned pending appeal. In this case the District Court in Alabama had decided that the child must...

    Lawyers and mediators in United States – South CArolina

    Jonathan W. Lounsberry

    Jonathan W. Lounsberry

    Attorney

    Spartanburg

    KD Trial Lawyers