Can My Sister Modify Her Child Custody Order?

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My sister and her ex-husband went through a bitter divorce 2 years ago and are residents of South Carolina. He admitted to the court that he committed adultery (actually 3 times before the divorce was final.) They have 3 kids (1 boy and 2 girls) between them. He remarried a couple days after the divorce was final and now he has another step-daughter by marriage, and another girl on the way with his new wife. In the divorce agreement, my sister retained permission to take the kids and move to Nicholson Georgia with my mother. While there for 4 months, she was unable to find employment. She was offered her old job back in South Carolina and she moved back to support her children. She has the kids every week and her ex gets the kids every other weekend. I live in the Metro- Atlanta area with my husband. When she was in Nicholson( 70 miles for Atlanta), my husband and I were not married and though my husband was financially stable, I was not. Now we both have very good, stable jobs and stable income. We began talking to my sister about her moving with her 3 kids up here so that we can help her finish her degree and offer her a place to stay while she gets her B.A. in Business. She wants to get her degree to make a better life for her and her children, but also because her ex is very erratic paying his child support and she is tired of working 50-60 hours a week and not being able to be there for her kids. My sister presented him with a very generous, very neutral amendment to their divorce agreement in that she would meet him half way 1 weekend a month, all 3 day holidays, alternate major holidays (as in their previous agreement), and he would get them for their entire summer in which he would not have to pay any child support during that time. At first, he told her that if she tried to take him back to court to be allowed to leave, he was going to take the kids away from her (his sister works for a lawyer so he gets free legal representation. My sister- a single mother of 3 kids, does not have access to any legal help – not even Pro Bono). When we found out his new wife was having another girl, he told her he’d only let her leave if she gave him full custody of his one and only son. Naturally, my sister said NO that she would work with him but that she’s not splitting up the family like that. Wherever they go, they go together and they work together. Since then, he has been very verbally abusive, telling her that she’s crazy and an unfit mother because she has anxiety issues and takes medication for them (because of the stress he causes her.) When he has custody of the kids every other weekend, he asks the kids who they want to live with (by the way- their son is almost 8, daughter is almost 7, and other daughter is almost 4 this year (2011)). Obviously, from a child development stand point ,these kids do not actually understand what is going on. The son has mentioned living with the dad because he has “a trampoline, a back yard, and a bicycle.” He only wants his dads love. His dad never paid him any attention until my sister asked to leave the state. While living with me and on her own, my sister has stated an open door policy in that he is welcome to see his kids at any time, and that his parents are allowed to see the kids at any time. She is willing to meet half-way once a month, but if he doesn’t feel like its enough, she’ll meet him every other week as it is now and still give him the summer (way more visitation that he has right now). He is still not satisfied. He continues to tell her that he is going to get everyone to testify against her that she’s crazy( I most assure you, she is NOT even close.) She is able to get written recommendations from her to doctor that her move would be healthy for her, as well as written documents from the children’s teachers.I have 3 questions. (This is all SC Law):
1.) Is it legal for him to bully her to try to get her not to move and inconvenience him? (By the way- his new wife agreed to meet my sister half way to pick up the kids).
2.) Legally- if there is not written proof from a psychologist that she has any mental illnesses (other than stress-related anxiety) could the courts still take away her custody?
3.) At what age is considered old enough for a child to make decisions on which parent they will live with?

It is illegal for anyone to bully (harass) a person. Your sister can file a restraining order against her ex if she feels threatened by him. She may be able to obtain a civil restraining order which would prevent him from harassing her. If he violates the restraining order, he could face severe criminal repercussions.

In regard to your second question, the court will not terminate your sister’s custody based on her ex-husbands alleged claims. There would have to be sufficient evidence to show that your sister is unfit to take care of her children due to mental illness.

In regard to your final question, a child is not allowed to choose with whom he/she want to live, at any age (this is a “huge” misconception that many people have heard and believe). The reason the court will not let a child choose is if the child says one parent, and the court places them with the other, then the child feels even more powerless and unheard. On the other hand, if the child chooses one parent and the court agrees, then the court has just handed a child “immense” power over their parents. Note, sometimes a court will have an older teen provide some input, but they still don’t get to “choose.”