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 Washington, without establishing paternity, an unmarried father will not automatically receive parental rights, even if he is the child’s biological father and has assumed a paternal role in the child’s life. A biological mother, on the other hand, is automatically granted parental rights. Likewise, if a married woman gives birth, her husband is presumed to be the father and he receives parental rights automatically.

A father can establish paternity several ways. He can sign an acknowledgement of paternity, together with the child’s mother, or petition the court for genetic testing to obtain paternal rights.

Once a father obtains paternal rights, he has the right to pursue custody in the same way a mother would. Both mothers and fathers have equal rights to child custody. Custody arrangements can vary, and include joint or sole custody depending on the specifics of your situation.

 

After divorce

In most cases, the parents will share custody in some fashion, but the court will name one parent as the primary custodial parent. The primary custodial parent is the person who the child lives with a majority of the time.

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

Notice of relocation

Under Washington State law (the Relocation Act), the parent who wants to relocate with the child, must send a notice of relocation. Even if there is no existing custody order or parenting plan, the parent is obligated to send this notice (and to submit a parenting plan, see below).

RCW 26.09.440 states that the relocating party must send a notice of relocation to all parties at least 60 days ahead of the expected move.

The other party may be the father, but may also be grandparents or siblings or any other person with visitation rights concerning the child. This requirement protects the other parties rights to see the child and it gives them the opportunity to object if they believe that the relocation is not in the child’s best interests.

The notice should include:

  • the new address, phone number;
  • a brief explanation of why the parent and the child plan to relocate;
  • an updated mailing address for the non-custodial party to contact the moving parent;
  • the contact information for the child’s school or daycare.

Parenting plan

Besides sending a notice of relocation, a proposed parenting plan must be submitted that outlines any new potential custody or visitation arrangement along with the notice of relocation. The notice should be filed with the same court that entered the divorce or privious parenting plan.

No notice

If a parent relocates without giving proper notice, the court can take the following actions:

  • Order the child to move back to their previous location or the other parent’s home;
  • Order the relocating parent to pay the other parent’s attorney’s fees and costs;
  • Find the relocating parenting in contempt and order jail time, fines, or other punishments.

If a court finds a parent in contempt more than once in a three-year period, they can award the other parent custody.

Objection against the move

If another party objects to the planned relocation, he or she must demonstrate that the detrimental effect of the relocation outweighs the benefit of the change tot the child and the relocating person. RCW 26.09.520 states that the following factors can be relevant:

(1) The relative strength, nature, quality, extent of involvement, and stability of the child’s relationship with each parent, siblings, and other significant persons in the child’s life;
(2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the person seeking relocation would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
(8) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent;
(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
(10) The financial impact and logistics of the relocation or its prevention; and
(11) For a temporary order, the amount of time before a final decision can be made at trial.

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.

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)

 

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 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 emotionally charged...

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