You have custody. Your children are settled, and then a process server hands you a complaint asking the court to change everything. The first question most parents ask is how much they will have to prove. In many cases the better question is how much the other parent has to prove. A Rule 41(b) motion in family court lets your lawyer test that proof the moment the other side rests, before you ever take the stand.
The parent asking for a change carries the burden. That parent must prove a substantial change in circumstances since the last order, and that a new arrangement is in the child’s best interests. If that proof falls short, the judge can dismiss the case at the close of the other parent’s evidence. Motions in limine, filed before trial, keep weak or improper evidence from propping up a thin case.
What the moving parent must prove under Latimer v. Farmer
The leading South Carolina case is Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004). There, the Supreme Court said a change in custody requires changed circumstances occurring after the entry of the prior decree. The parent seeking the change must then establish two things: (1) a substantial change in circumstances affecting the welfare of the child, and (2) that a change in custody is in the overall best interests of the child. 360 S.C. at 381. Both parts sit on the moving parent’s shoulders, not yours.
Latimer also tells you what is not enough. In that case, the custodial father had remarried and planned to move to Michigan. The Court held that remarriage, in and of itself, is not a sufficient change. It also declined to hold that relocation in itself is a substantial change, calling relocation one factor that is not alone enough. 360 S.C. at 382. The firm’s earlier post on Latimer v. Farmer and child relocation covers the relocation side of the case in more depth.
The Latimer factors in relocation cases
When a move is the claimed change, Latimer offered factors other states use. The Court was careful to say it did not endorse any of them, but it provided them for consideration. 360 S.C. at 382-83. Family law practitioners now call them the Latimer factors. They include:
- each parent’s reasons for seeking or opposing the move;
- the quality of the child’s relationship with each parent;
- the impact of the move on the child’s future contact with the other parent;
- whether the move may improve life for the parent and child economically, emotionally, and educationally;
- whether the move is more than a whim, and the integrity of each parent’s motives; and
- whether suitable visitation can preserve the relationship with the other parent.
Use the factors as a checklist of gaps. If the other parent offers no evidence on a factor, or offers only their own opinion, note it. Those gaps become the outline for your Rule 41(b) argument. Our post on what best interests of the child actually means explains how judges weigh the second prong.
How a Rule 41(b) motion in family court works
Rule 41(b), SCRCP, allows the defendant to move for dismissal once the plaintiff has completed the presentation of his evidence in a case tried without a jury. The ground is that upon the facts and the law the plaintiff has shown no right to relief. Family court applies the civil rules through Rule 2(a), SCRFC, and Rule 41 is not on that rule’s list of exceptions. For more on how the two rulebooks fit together, see our post on Rule 2(a) and the Rules of Family Court.
Here is the part that matters most. Because the family court judge is also the fact-finder, the judge does not have to view the evidence in the light most favorable to the other parent. Instead, the judge may weigh the evidence, determine the facts, and rule against the plaintiff at the close of his case. Johnson v. J.P. Stevens & Co., 308 S.C. 116, 417 S.E.2d 527 (1992), 308 S.C. at 118. In other words, a case that looks adequate on paper can still fail if the judge does not believe it.
The rule also protects you. You make the motion without waiving your right to offer evidence if the motion is denied. The judge may also choose to wait and decide after hearing all of the evidence. If the judge does dismiss, the rule requires findings under Rule 52(a), and the dismissal operates as a ruling on the merits unless the order says otherwise.
A Lowcountry example
Picture a Mount Pleasant father who files to take custody from the mother. His case rests on three points: she remarried, she changed jobs, and the child’s grades dipped one semester. He calls himself, his sister, and a neighbor. None of them offer school records, and no witness explains how any change has harmed the child. When he rests, the mother’s lawyer moves under Rule 41(b). Remarriage alone is not enough under Latimer, the grades proof is thin, and nothing ties the job change to the child’s welfare. A judge in Charleston County could fairly dismiss the case right there.
Not every motion succeeds, and that is worth knowing too. In Roof v. Steele, 396 S.C. 373, 720 S.E.2d 910 (Ct. App. 2011), an alimony modification case, the husband moved for an involuntary non-suit under Rule 41(b). He argued the wife had not shown an unanticipated change of circumstances. The Court of Appeals found that argument without merit. 396 S.C. at 390. The lesson is plain: the motion works when the record is empty, not when the evidence is merely disputed.
Motions in limine: clearing the record before trial
A Rule 41(b) motion is strongest when the other parent’s record is thin. Motions in limine help make it thin. They ask the judge, before trial, to exclude evidence that should never come in. Here are common examples in a custody modification case.
Evidence that predates the last order. Latimer requires changes occurring after the prior decree. Complaints about the marriage, the old separation, or events the court already heard are often irrelevant to that question. A motion under Rule 402, SCRE, asks the court to keep the trial focused on what has changed since the last order. Old history can sometimes come in as background, so the judge decides how far to go.
Hearsay from teachers, relatives, and the child. Letters, unsworn statements, and secondhand accounts are hearsay. Rule 802, SCRE, bars hearsay unless a rule or statute allows it. A motion in limine can target written statements from people the other side does not plan to call. Children’s statements follow special rules, which we explain in our post on child hearsay in South Carolina family court.
Texts, screenshots, and social media posts. A screenshot is not self-proving. Under Rule 901, SCRE, the party offering it must show it is what they claim it is. Cropped images, missing dates, and messages from unknown numbers are fair targets. A pretrial motion puts the other side on notice that they must lay that foundation.
Witnesses and documents never disclosed in discovery. If the other parent hid a witness or a document in discovery, ask the court to exclude it. Exclusion is not automatic, though. In Jumper v. Hawkins, 348 S.C. 142, 558 S.E.2d 911 (Ct. App. 2001), the court explained there is no mandatory rule requiring exclusion of an undisclosed witness. 348 S.C. at 149. Instead, the judge looks at the type of witness, the content of the testimony, the reason for the failure, and the degree of surprise. Where a court order was violated, Rule 37(b), SCRCP, also lets the judge prohibit the disobedient party from introducing designated matters in evidence.
Unfairly prejudicial or repetitive proof. Even relevant evidence can be excluded. Rule 403, SCRE, permits exclusion when its value is substantially outweighed by unfair prejudice, confusion of the issues, undue delay, or needless cumulative evidence. Five witnesses telling the same story, or graphic material with little bearing on the child, can be limited this way.
Common mistakes that let a weak case survive
- Calling it a directed verdict. Rule 2(a), SCRFC, makes Rule 50, SCRCP, the directed verdict rule, inapplicable in family court. Ask for dismissal under Rule 41(b) so the judge applies the right standard and can weigh credibility.
- Waiting too long. The motion belongs at the close of the other parent’s case. Once you put on your own witnesses, you may fill the very gaps you wanted to point out.
- Arguing best interests first. The substantial change is a threshold. Lead with the missing change, then address best interests.
- Treating a limine ruling as final. A ruling in limine is not a final decision on the evidence. Even if your motion is granted, you must object when the evidence is offered at trial. Parr v. Gaines, 309 S.C. 477, 424 S.E.2d 515 (Ct. App. 1992), 309 S.C. at 481. Without that objection, the issue may not be preserved for appeal.
- Assuming hidden evidence is out. Under Jumper, exclusion depends on the circumstances. Raise the discovery failure early and show how it prejudiced you.
- Skipping the order. If the motion is granted, the judge must make findings. Have a proposed order ready that tracks the Latimer test, so the record supports the ruling.
For a general overview of how modification works on both sides, see our post on whether custody and visitation awards can be modified.
Frequently asked questions
Can a family court judge dismiss a custody modification case before I testify?
Yes. Under Rule 41(b), once the parent seeking the change rests, the judge may weigh the evidence and dismiss if no right to relief has been shown. The judge may also wait until all evidence is in.
Does a Rule 41(b) dismissal mean the other parent can never file again?
A dismissal is usually a ruling on the merits of that case. However, custody can always be revisited if new circumstances arise after the order. The next case would need new changes, not the same facts.
Is moving to another city a substantial change in circumstances?
Not by itself. Latimer held that relocation is one factor but is not alone a sufficient change. The effect on the child is highly fact specific.
When should a motion in limine be filed?
Before trial, often with the pretrial filings or at a pretrial hearing. Remember that the ruling is not final, so you must still object when the evidence is offered.
Talk to a Lowcountry custody attorney
Klok Law Firm LLC defends and brings custody modification cases in Charleston, Berkeley, and Dorchester County family courts. We prepare every modification trial with the Latimer test and the evidence rules in mind from the first day. Call Klok Law at (843) 701-1695 to discuss your options.
This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.
Rhett D. Klok, Esq. is a personal injury and family law attorney in Mount Pleasant, South Carolina. Klok Law Firm, LLC · (843) 701-1695 · rklok@kloklaw.com