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mmdesq, Family Law Attorney
Category: Family Law
Satisfied Customers: 518
Experience:  Attorney with 13 years experience.
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I am inquiring about a custody case. Myself husband and son

Customer Question

I am inquiring about a custody case. Myself husband and son are Canadian residents but are living in Greenville sc on work visa. We are currently separating and I want to take my son back to Canada with me but my husband won't approve. I just need to know what my rights are and in your experience is this possible
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation.


Under S.C. Code Ann. §16-17-495(A)(2), it is unlawful to take a child to avoid a custody proceeding after a pleading is filed and served. If the parent knows that the other parent is about to file for custody as part of divorce, and takes the child out of state to Canada, then the authorities may decide to charge with custodial interference. It is on a case by case basis. So while it is certainty possibly since unless/until the court states otherwise in temporary/final orders, each parent has the right to take the child anywhere, it may nor be advisable.


Under the Uniform Child Custody Jurisdiction and Enforcement Act, the original jurisdiction for custody is where the child has been living for the last 6+ months. So if this is in SC, then he can file for custody as part of divorce in SC and make you come back to SC to deal with this issue (or at least make trips back). However if he fails to do this within 6 months, you could file in Canada and have jurisdiction there. Also, domestic violence allows you to file in the first court available regardless of the 6 months.

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Customer: replied 1 year ago.
Very vague and not helpful
Expert:  Ely replied 1 year ago.


I am sorry you do not find my answer helpful. I am not sure how much more specific I can be after citing both S.C. Code Ann. §16-17-495(A)(2) for child interference and UCCJEA for jurisdiction. I am going to go ahead and opt out and perhaps another expert can satisfy. Good luck.

Expert:  mmdesq replied 1 year ago.
Good Afternoon,I will try to best answer your question.If there is no custody order in place then you cannot be in contempt of court. In addition, if there is no custody order in place and you believe that Canada will provided superior forum for your position then I would consider returning. A large part of successfully litigating your custody action will be picking your Battlefield. Neopolean won so many battles because he always selected his Battlefield. Although the UCC JEA will control jurisdictional issue that goes by where the child resided during the last six months. Hence if you return to Canada and can remain there for 6 months before husband files you should be able to remain in Canada for litigation. If there are any issues of physical violence or threats that can also be a basis to circumvent the six-month requirement Under the UCCJEA. Although no one can guarantee a result, I have been involved in many cases in which parent has left the jurisdiction, and I have tried to get the court to require the person to return with little success.
I hope that this clarification is helpful I wish you the best of luck resolving this matter.