South Carolina

Statutory framework; factor structure: 17.

Authority

S.C. Code Ann. § 63-15-240(B)

Source framework

Statutory

Factor structure

17

Operative language

must consider, may include

Catch-all language

yes, (B)(17)

Presumptions in the original survey

None

Child's voice / age rule

none

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§ 20-3-10(5): "lived separate and apart without cohabitation for a period of one year"

Authority

S.C. Code § 20-3-10, S.C. Const. art. XVII, § 3

Grounds without a misconduct showing

§ 20-3-10(5): "lived separate and apart without cohabitation for a period of one year"

Other grounds and proof conditions

adultery, desertion one year, physical cruelty, habitual drunkenness including narcotic drugs (4)

Separation

One year apart for no-fault divorce. Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011), discusses the separate-domicile rule for no-fault divorce while deciding a separate-maintenance action. Other fault grounds do not all require separate residences.

Timing

No reference before two months and no final decree before three months after filing under § 20-3-80. When divorce is sought for desertion or one year of separation, the hearing may be held and decree issued after responsive pleadings are filed or the respondent is adjudged in default, whichever occurs sooner.

Relief without dissolution

Yes, separate support and maintenance, § 20-3-130(B)(5), § 20-3-140. Theisen’s majority affirmed dismissal of a separate-maintenance action while the spouses still lived together. Justice Pleicones, joined by Justice Beatty, concurred in part and dissented in part, disputing the living-apart prerequisite.

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General best-interest factors. Ordinary modification. No separate relocation notice rule found; consent or court permission may still be required.

Authority

Case law (Latimer 2004), S.C. Code 63-15-240(B)(16)

Court test

general best-interest factors (no relocation-specific list)

Burden classification

burden on the party seeking modification (no relocation-specific allocation)

Notice classification

no

Trigger classification

none defined by statute or rule

Effect of silence

No generally applicable deemed-consent procedure identified; existing order terms remain separate

What the court weighs

Latimer (2004) overruled McAlister's presumption against relocation. In all custody cases, including relocation cases, the controlling consideration is the child's welfare and best interests. Latimer did not adopt a separate relocation-specific factor list; § 63-15-240(B) supplies general custody factors. The courts have noted factors other states use without endorsing them (Walrath v. Pope, 384 S.C. 101, 681 S.E.2d 602 (Ct. App. 2009) ). Courts say the authority to prohibit an out-of-state move should be exercised sparingly (Rice v. Rice, 335 S.C. 449, 517 S.E.2d 220 (Ct. App. 1999), decided while the McAlister presumption still stood and finding it rebutted). The Latimer factors are instructive, not mandatory (Lacefield, unpublished).

Who carries the burden

No burden shift. The burden follows the party who asks to modify the order. A noncustodial parent seeking a change in custody must prove a substantial change in circumstances affecting the child's welfare and that a change is in the child's overall best interest (Latimer, 360 S.C. at 381). In Latimer, the agreement was silent on moving out of state, and the court said there was no relocation agreement to modify; the noncustodial parent seeking a custody change bore the substantial-change burden (n.3). A custodial, relocating parent who asks to modify the order, for example to alter the visitation schedule, bears the burden of showing a substantial change in circumstances (Latimer n.3, distinguishing Pitt v. Olds, 333 S.C. 478, 511 S.E.2d 60 (1999), as described in Latimer).

Notice and safety exceptions

No general relocation-specific advance-notice period identified. Latimer’s footnote 3 concerned an agreement silent on moving out of state and distinguished a noncustodial parent’s custody-modification request from a custodial parent’s request to modify visitation. Existing order terms and the relief requested remain important.

Which moves trigger the rule

None identified in statute for a permission or notice rule. Factor (B)(16) concerns whether a parent relocated more than 100 miles from the child's primary residence in the past year, unless the relocation was for safety reasons.

Objections and the effect of silence

No general relocation-specific objection procedure or deadline identified. Latimer involved requests for restraint or transfer of custody; the ordinary modification burden depends on which parent seeks what relief.

The modification threshold

No. Relocation is one factor in considering a change in circumstances but is not alone a sufficient change (Latimer, 360 S.C. at 382).

Other qualifications

Section 63-15-240(B)(16) considers whether a parent relocated more than 100 miles from the child's primary residence in the past year, unless the parent relocated for safety reasons. Section 63-15-40(B) separately provides that a parent’s absence or relocation from the home, if caused by domestic violence by the other parent and the absent parent was not the primary aggressor, is not sufficient by itself to deny that parent custody. No general relocation-notice statute identified.

Burden summary

Ordinary modification

Notice summary

No separate relocation notice rule found; consent or court permission may still be required

Trigger summary

No statutory or rule trigger

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