Early in my career one of my most trusted mentors would counsel me when I asked her about filing a motion or complaint in the family court before having my client take an action that I thought might upset the opposing party: “it is better to beg forgiveness than ask permission”. Google that phrase and the consensus view is that it is indeed better to beg forgiveness.
Yet, of all the advice that mentor provided me, this advice rang least true. Twenty-plus years of experience strengthens my conviction that asking permission is often the best course of action within family court.
Whether to “beg forgiveness” or “ask permission” comes up frequently when advising clients on relocation. There are circumstances when the obvious answer is to “beg”: when paternity has not been established and the father has a minimal relationship with the child. Other circumstances obviously require “ask,” such as when the parents have true shared custody or when the order prohibits relocation absent a court order.
When I first started practicing family law, a mother (I’ve yet to see a father remove a child without obtaining permission) who relocated with a child absent court permission might, at worst, be ordered to return the child to South Carolina. Now one often sees circumstances in which the court will simply change custody to the father. These mothers then complain that nothing in the prior order prohibited their relocation. Often these mothers sought advice from attorneys who indicated they were better off “begging forgiveness.”
Until recently that might have been true. However the 2012 codification of child custody factors in S.C. Code § 63-15-240(B) made relocation of more than 100 miles and a parent’s actions to “encourage the continuing parent-child relationship between the child and the other parent” explicit factors in deciding child custody. It is my perception that courts are more likely to simply change custody when a parent doesn’t ask permission before relocating or taking other actions that limit the other parent’s relationship.
Where a contemplated action might unduly limit the other parent’s relationship with the child, one takes great risks in hoping to beg forgiveness rather than ask permission. Advice that might have been valid a generation again is increasingly problematic.
One of the cases that I will remember until the day I leave this world, was an awful relocation case. Too many twists and turns to cite here. But, that experience has led me to discuss possible relocation with clients at the initial stages of my representation. I take the position that if a parent intends to move so far as to prevent the visitation in the current court order, they have no choice but to file a new action or risk being in contempt of the visitation requirements. I have prevailed in keeping a child here, when father, who was secondary placement parent had extensive periods of placement and mom couldn’t really give a good reason for wanting to move.
In my opinion, you are spot on with your suggestion of asking for permission first in these circumstances.
Really great article share! Definitely a sensitive topic, thanks for the share!