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Unpublished Opinion No. 2009-UP-001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.