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2009-UP-001 - Camper v. Santiago

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Joey Dwayne Camper, Respondent,

v.

Tuesday Elaine Santiago, Appellant.


Appeal From Anderson County
 Tommy B. Edwards, Family Court Judge


Unpublished Opinion No. 2009-UP-001
Heard September 16, 2008 – Filed January 5, 2009   


REVERSED AND REMANDED


Tom W. Dunaway, III, of Anderson, for  Appellant.

Nancy Jo Thomason, of Anderson, for Respondent.

Amy C. Sutherland, of Greenville, for Guardian Ad Litem.

PER CURIAM:  This is a custody dispute.  The family court awarded care, custody, and control of the parties’ son (Child) to Joey Dwayne Camper.  Tuesday Elaine Santiago, Child’s mother, appeals.  We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Child was born to Santiago and Camper on September 29, 2001.  Santiago and Camper met when Santiago was fourteen and Camper was twenty-one.  They lived together several years, never married, and separated when Child was twenty months old.

In 2004, the parties reached a full and final agreement concerning Child’s placement.  Under the agreement, Santiago would have sole legal custody and primary placement of Child, and Camper was to pay child support and have reasonable visitation.  On May 24, 2004, the family court filed an order incorporating the agreement.

In July 2004, Santiago relocated with Child to Houston, Texas.  Camper, however, did not become aware of the move until July 20, 2004, when he arrived at Child’s daycare facility to pick Child up for a visit and was told by the daycare owner that Santiago’s mother had called and advised that Child would not be coming back.  After unsuccessfully attempting to reach Santiago by telephone and in person, Camper went to the office of the attorney who had represented him at the custody hearing and learned that the attorney had received an e-mail advising her that Santiago was moving to Texas.

Later that month, Camper filed the present action, requesting temporary and permanent custody of Child, child support from Santiago, and attorney’s fees and costs.  Pursuant to Camper’s motion, the family court set an emergency temporary hearing on July 30, 2004, to determine the issues of temporary custody, child support, and attorney’s fees.

By order dated August 11, 2004, and filed August 23, 2004, the family court found, among other things:  (1) Santiago’s move to Texas prevented Camper from exercising his court-ordered visitation rights with Child; (2) there was no showing that Santiago’s move would substantially benefit Child and, if Child were to continue to live with Santiago in Texas, this would greatly diminish Camper’s right to participate in Child’s upbringing; and (3) Santiago’s move constituted a substantial change in conditions enabling the family court to alter or amend the prior custody order.  Based on these findings, the family court granted the parties temporary joint custody if Santiago returned to South Carolina.  In the alternative, if Santiago chose to remain in Texas, Camper would have temporary custody of Child and Santiago would have visitation every other weekend.  Santiago chose to remain in Texas, and as a result the family court issued another order on September 20, 2004, granting Camper temporary custody of Child, awarding visitation to Santiago, and ordering Santiago to pay child support. 

While the case was pending, Santiago married and unsuccessfully sought to change the custody arrangement to a shared placement plan.  By consent of the parties and with the approval of the family court, however, Santiago received more time with Child during her weekend visits and extended visitation during the holiday season.

The family court held a final hearing in the matter in 2006.[1]  On October 31, 2006, the family court issued and filed an order granting Camper care, custody, and control of Child and awarding liberal visitation to Santiago.  In reaching this decision, the court found that, despite Santiago’s explanation that she had moved to Texas for better job opportunities, the primary reason for her move was to be with her boyfriend.  In addition, the court questioned her honesty and forthrightness in her actions after she received legal custody of Child in 2004.  After an unsuccessful motion for reconsideration, alteration, or amendment of the order, Santiago filed this appeal.

DISCUSSION

Santiago contends the family court erred in awarding custody of Child to Camper based on her relocation to Texas.  We agree.

On August 16, 2004, after the emergency temporary order was signed but before it was filed, the supreme court issued Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004).  In Latimer, the court held that relocation by a custodial parent was, without more, not necessarily a change of circumstances warranting modification of a child’s placement.  Id. at 382, 602 S.E.2d at 35.  Reiterating the longstanding emphasis on serving the child’s best interest in making a custody determination, the court stated as follows:

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.

Id. at 381, 602 S.E.2d at 34-35 (emphasis added).  The court went on to hold that the noncustodial parent, who had opposed the relocation of the child with the custodial parent and sought a change of custody based on this factor, bore the burden of establishing that (1) a substantial change in circumstances affecting the welfare of the child had occurred as a result of the relocation; and (2) a change in custody would be in the child’s best interest.  Id. at 382, 602 S.E.2d at 35.  Moreover, despite the acknowledgement that relocation of a child with his or her custodial parent would almost always compromise the noncustodial parent’s visitation rights, the court unequivocally held that “[i]t 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.”  Id. at 382, 602 S.E.2d at 35.  The court then proceeded to consider several factors in determining whether the relocation warranted a change of custody, among them “the availability of a realistic substitute visitation arrangement that will adequately foster an ongoing relationship between [the noncustodial parent] and Child.”  Id. at 385, 602 S.E.2d at 37.

In support of its decision to award custody to Camper, the family court expressed “great concern” about Santiago’s “lack of honesty and forthrightness in her actions since she was granted custody in May, 2004.”  Although Santiago’s abrupt move to Texas without advance notice to Camper may have warranted this concern, this fact, without more, does not necessarily constitute a substantial change in circumstances affecting Child’s welfare and warranting a change in custody.  Also troubling is the family court’s apparent decision to approach the custody dispute as one in which Santiago, as the relocating party, had the burden to show that her decision to leave South Carolina was in Child’s best interest.  As to Child’s best interest, the only factor cited in the family court order as one that was affected by Santiago’s move to Texas was Child’s contact with Camper and both sides of Child’s extended family.  As to that factor, the family court, without explanation, found there existed no “realistic substitute visitation arrangement that would have adequately fostered an ongoing relationship between non-custodial parent and child after Defendant/Mother relocated to Texas,” but apparently never considered the possibility of providing visitation through telephone contact or other means of communication.  See id. at 379, 602 S.E.2d at 34 (noting the noncustodial parent who was opposing the child’s relocation with the custodial parent was awarded extensive visitation “including computer teleconferencing, e-mail, and telephone contact”).

We therefore hold the family court, in changing custody of Child from Santiago to Camper, did not make a proper determination as to whether Santiago’s relocation to Texas adversely affected Child’s best interest.  For this reason, we reverse the decision to grant custody of Child to Camper and remand the matter to the family court for further proceedings consistent with this opinion.  On remand, the family court may consider any new evidence properly before it, including evidence concerning developments since the final merits hearing.  Custody of Child shall remain with Camper pending further order of the family court.

REVERSED AND REMANDED.

SHORT, THOMAS, and PIEPER, JJ., concur.


[1]  The trial required three hearing dates:  March 29, May 5, and September 7, 2006.