Moved to Home State After Release from Military Following Divorce/Custody Agreement

My question involves a child custody case from the State of: South Carolina.

My ex-husband and I were both active duty military stationed at Fort Jackson, SC during the time both of our children were born. Neither of us were permanent residents of SC, but were able to file for divorce based upon physical residency. My ex-husband remained in SC after discharge, and established residency during divorce.

Custody was established as shared custody, each parent keeping the children in their physical custody for two weeks at a time. Every two weeks, we switched off with the kids. During the parent's two weeks, they were the primary custodian - same went for the other parent during the following two weeks. Nothing in our divorce agreement established any type of rules regarding moving out of state or a specific meet place/time. The only requirement in writing was that one parent inform the other if they would be taking the children out of state.

Upon my release from the military, I moved home to New York, where I maintained residency throughout my entire time on active duty. My ex and I agreed to change schedule to one month with kids, switching every 4 weeks instead of 2.

My son is due to start kindergarten this September, and the custody needs to be modified one way or the other. I would like to have them for the school year and my ex have them over summer break and alternate holidays. My ex wants the same exact thing - him having kids for school year and me having them over breaks.

When we are at a stand still in agreeing to long-term custody arrangements, what type of factors would be reviewed in court to determine which parent will receive primary custody? If it's a 50/50 split and both parents are fit to care for kids, how will a judge decide custody?

Also, can I submit an order to the court for custody modification or do I have to serve my ex and take him back to court? Not sure how to start the process of custody modification.

The judge will decide based on best interests. Google it for SC (since that's where the original order was made).

You'll have to file in court, and have your ex served.

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You do have a problem though. You're basically asking to relocate the child out of state - and here's what SC says about it in terms of what the court will look at specifically (see Latimer vs Farmer ):

(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 custodial parent and the children and is not the result of a whim on the part of the custodial parent;

(3) the integrity of the motives of both the custodial and noncustodial parent in seeking the move or seeking to prevent it;

(4) and the availability of realistic substitute visitation arrangements that will adequately foster an ongoing relationship between the child and the noncustodial parent.

Will the judge take into consideration that I was stationed in South Carolina, which was not my permanent place of residency? I was sent there on military assignment, to fulfill my military contract, and considering I maintained NY residency during my entire time on active duty, I felt it would be assumed that upon discharge, I would return to my home state. Had I not been discharged from the military, eventually I would have received orders for another duty station, making a move inevitable, regardless.

I had no ties to SC other than military duty - no family, no support system, etc. My license was still issued from NY State, and I still paid NY State taxes. In order to start college as a state resident, I would have to enroll in college in NY, and the only way for me to receive adequate support as a single mother would be to move back home, where I have a large family support system.

I realize that a long-term custody arrangement would affect either one parent or the other, considering that the children could not enroll in two school systems, so eventually, one parent would need to keep them during the school year and the other during breaks/holidays. I just worry that I am at a disadvantage, being the parent who moved out of state. I wondered if there were any considerations for military members who were serving active duty in the state of divorce/custody hearing.

I did not decide to leave a state I voluntarily moved to, but rather I left a state, where I was serving military duty, upon completion of service. I'm not sure if there are special considerations in that type of situation - or for service members in general pertaining to moves directed by military orders. My discharge orders listed my home of record as NY - being my location of retirement (I was medically retired from service). Thanks for the feedback. I really appreciate the helpful information.

Also, I spoke briefly to a lawyer who stated that if the children spent 6 months in NY, that I could possibly file the motion in NY instead of SC. I have been back in NY since August 2012, but the children have been alternating months between NY and SC, so they have not been here 6 consecutive months. Would that void the 6 month residency rule, considering they have been spending an equal amount of time in both states?

Another piece of information that I wondered would have effectiveness in my case - my children are both insured under my name/insurance for all of their medical care. Their primary doctors are located in NY, and my ex-husband does not have insurance coverage for them. Our divorce agreement stated that upon my release from the military, both parents were responsible for having health insurance coverage for the children. Am I in a position to file a custody modification with the court, without representation from a lawyer? Or is that a risky move? My ex and I both spent thousands of dollars on the divorce, and we both have been avoiding the process of a custody battle, due to the costly amount of lawyers that neither of us can easily afford.

I honestly, truly don't think you should attempt this without an attorney.

With regards to the 6 months residency issue, look at it this way.

You were back in NY in August. It's now (for all intents and purposes) February. That's only 5 whole months and the children have therefore only spent a max of 3 months there. If you go backwards for a full 12 months (which is often done in cases like this), that means they've still spent the majority of their time in SC.