Latimer v. Farmer

• Decision Date: 16 August 2004
• Docket Number: No. 25857.,25857.
• Citation: 602 S.E.2d 32,360 S.C. 375
• Court: South Carolina Supreme Court
• Parties: Charlotte LATIMER, Stuart Latimer, and Michelle Farmer, Appellants, v. Daniel FARMER, Respondent.

360 S.C. 375

602 S.E.2d 32

Charlotte LATIMER, Stuart Latimer, and Michelle Farmer, Appellants, v. Daniel FARMER, Respondent.

No. 25857.

Supreme Court of South Carolina.

Heard May 27, 2004.

Decided August 16, 2004.

Raymond W. Godwin, of Greenville, for Appellants.

Robert M. Rosenfeld, of Porter & Rosenfeld, of Greenville, for Respondent.

Kelvin R. Kearse, of Easley, Guardian ad Litem.

Justice BURNETT:

This is a custody dispute arising out of the custodial parent's relocation. Appellant Michelle Latimer Farmer (Mother) appeals the family court order concluding Respondent Daniel W. Farmer (Father) should be allowed to relocate with their adopted child (Child). Appellants Charlotte and Stuart Latimer (Grandparents) appeal the family court's order denying them autonomous visitation rights with Child. We affirm.

FACTS

Mother and Father were married on June 4, 1988 and were divorced on February 11, 2000 because of Mother's adultery with one John Case.

Approximately a year and a half before the divorce, Father and Mother adopted Child, a Romanian orphan born May 14, 1997. Father and Mother brought Child home to Greenville in August 1998. Three weeks later, Father discovered Mother's adulterous relationship with Case. Mother agreed to terminate the relationship and the couple were reconciled. In May 1999, the parties' adoption of Child was completed. One month later, Mother separated from Father. Father became suspicious of Mother's activities, and, at the suggestion of Mother's parents, hired a private investigator who confirmed Mother was still involved in the adulterous relationship. Following initiation of divorce proceedings by Father, the parties, by agreement, resolved all issues incident to the divorce. The agreement provided Father would have sole custody of Child and Mother was given visitation each week from 6:00 p.m. Thursday through 6:00 p.m. Saturday and additional visitation during holiday and vacation periods.

Father is an automation programmer.¹ While in Greenville Father was employed by Fluor-Daniel Corporation. Father sought and received a job offer in Plymouth, Michigan and now resides there with Child, his new wife, and a child born to them.

When Father informed Mother he was moving to Michigan, Mother and Grandparents sought and obtained an ex parte order preventing Father from moving to Michigan with Child. Appellants also sought a permanent restraining order preventing Father from moving out of state with Child or, in the alternative, transfer of custody to Mother. A hearing was held in November 2001. The court concluded it to be in Child's best interests to allow Father to move to Michigan with Child. The court also denied Grandparents' autonomous visitation rights independent of those of Mother. The court ordered extensive visitation for Mother, including computer teleconferencing, e-mail, and telephone contact.²

ISSUES

I. Did the family court err in allowing Father to relocate to Michigan and declining to change custody of Child to Mother?

II. Did the Guardian ad Litem (GAL) adhere to the proper standards in conducting his investigation?

III. Did the family court judge abuse his discretion in denying separate visitation rights to Grandparents?

LAW/ANALYSIS

Where a family court order is appealed, we have jurisdiction to find facts based on our own view of the preponderance of the evidence. We are not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to evaluate their credibility. Strout v. Strout, 284 S.C. 429, 327 S.E.2d 74 (1985). This degree of deference is especially true in cases involving the welfare and best interests of the child. Dixon v. Dixon, 336 S.C. 260, 263, 519 S.E.2d 357, 359 (Ct.App.1999). Our broad scope of review does not relieve the appealing party of the burden of showing the family court committed error. Skinner v. King, 272 S.C. 520, 252 S.E.2d 891 (1979).

I.

We are called upon to resolve one of the most challenging problems our family courts encounter. Cases involving the relocation of a custodial parent with a minor child 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.

Some states recognize a presumption in favor of the custodial parent's right to relocate. See e.g., In re Custody of D.M.G. & T.J.G., 287 Mont. 120, 951 P.2d 1377, 1383 (1998); In re Marriage of Burgess, 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473 (1996). Since our decision in McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982), the courts in this state have been guided by a presumption against relocation in determining whether to allow a custodial parent to relocate with a minor child. We take this opportunity to review this presumption. Insofar as McAlister established a presumption against relocation, we hereby overrule it for the following reasons. First, we recognize that standards imposing restrictions on relocation have become antiquated in our increasingly transient society. Second, confusion abounds surrounding the status of our relocation law, in part, because of the often stated, but infrequently applied, presumption against relocation. In all child custody cases, including relocation cases, the controlling considerations are the child's welfare and best interests. The presumption against relocation is a meaningless supposition to the extent a custodial parent's relocation would, in fact, be in the child's best interest.

Under the present facts, Mother seeks a change in custody. As in all matters of child custody, a change in custody analysis inevitably asks whether the transfer in custody is in the child's best interests. In order for a court to grant a change in custody, there must be a showing of changed circumstances occurring subsequent to the entry of the divorce decree. Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975). "A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the children would be served by the change." Stutz v. Funderburk, 272 S.C. 273, 276, 252 S.E.2d 32, 34 (1979). The change of circumstances relied on for a change of custody must be such as would substantially affect the interest and welfare of the child. Because the best interest of the child is the overriding concern in all child custody matters, when a non-custodial parent seeks a change in custody, the non-custodial parent must establish the following: (1) there has been a substantial change in circumstances affecting the welfare of the child and (2) a change in custody is in the overall best interests of the child.

In the present case, Mother seeks a change in custody. Therefore, she bears the burden of establishing both of these criteria.³ Mother has failed to show a substantial change in circumstances warranting a change in custody from Father to Mother for reasons set forth below. Father's remarriage, in and of itself, is not a sufficient change of circumstance affecting the welfare of Child to warrant a transfer of custody to Mother. See Fisher v. Miller, 288 S.C. 576, 344 S.E.2d 149 (1986) (remarriage alone is not sufficient to warrant a change in custody). Likewise, a change in Father's residence is not itself a substantial change in circumstances affecting the welfare of Child, which justifies a change in custody. 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. One location may not necessarily affect the best interests of the child as would another. The effect of relocation on the child's best interest is highly fact specific. 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.

Not only has Mother failed to show a change in circumstances affecting Child's welfare, she has also failed to show a change in custody would be in Child's best interests. We believe the best interests of Child are served by Father's relocation with Child to Michigan. We have not previously delineated criteria for evaluating whether the best interests of the child are served in relocation cases. As noted by the Court of Appeals in Pitt v. Olds, 327 S.C. 512, 519, 489 S.E.2d 666, 670 (Ct.App.1997), reversed on other grounds, 333 S.C. 478, 511 S.E.2d 60 (1999), other states have provided criteria to guide a court's decision. We do not endorse or specifically approve any of these factors for consideration, but merely provide the following for consideration in determining whether a child's best interests are served. For example, the New York Court of Appeal has set forth the following factors when determining if the child's best interests are served:

(1) each parent's reasons for seeking or opposing the move,

(2) the quality of the relationships between the child and the custodial and noncustodial parents,

(3) the impact of the move on the quality of the child's future contact with the noncustodial parent,

(4) the degree to which the custodial parent's and child's life may be enhanced economically, emotionally, and educationally by the move, and

(5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145, 148 (1996).

Pennsylvania requires courts in potential relocation cases to consider:

(1) the potential advantages of the proposed move, economic or otherwise;

(2) the likelihood the move would improve substantially the quality of life for the

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