Many of you know that I served as an infantryman in the Marine Corps earlier in life. As it turns out, I could never shake the urge to get back into uniform. Effective Friday, April 21, I will be leaving Curran Moher Weis to join the U.S. Army’s Judge Advocate General’s Corps on active duty. I will start with a six-week basic training program at Fort Benning, Georgia, followed by a ten-week legal training program at the Army’s JAG school in Charlottesville, Virginia. In September, my family and I will be moving to Hawaii where I will join the 25th Infantry Division at Schofield Barracks.
One of the biggest dilemmas that both family law attorneys and parents face in custody cases is whether a child should testify in the custody trial. Some parents want to shield their child from the court process regardless of the circumstances, while others want to give their child a voice – particularly if the child wants to be heard. Let’s look at some things to consider when this issue pops up:
Children’s Testimony, The law:
In custody cases, trial courts have a list of factors they must consider in determining what is in the “best interests of the child.” These factors are listed in §20-124.3 of the Code of Virginia. Factor 8 instructs the court to consider the “reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.” A judge, after examination of the child or hearing evidence about the child’s age, maturity, and intelligence, has the discretion to decide whether the child is competent to testify.
International travel with children can be a hotly contested issue in divorce or custody cases, and even more so in our extremely transient, diverse, and well-traveled Northern Virginia population. Many times, parties are able to work out mutually agreeable terms regarding international travel, but others aren’t so fortunate. A parent might be concerned about his or her child traveling internationally for any number of reasons, including the safety of the destination country and the concerns of parental kidnapping. This will serve as an introduction to some passport issues and how the state courts can get involved.
Most know that a passport is required for most international travel. But even if international travel is not planned or expected, a passport can also be useful as a form of identification for a child, though a Child ID Card issued by the Virginia Department of Motor Vehicles is generally easier to obtain.
U.S. passports may only be obtained by U.S. citizens and nationals. An applicant who meets the criteria for a passport must be issued one. Thus, as long as you can “check all the boxes” you are generally entitled to a passport. The State Department cannot arbitrarily decline a request for a passport.
For ease of reading, the party seeking the relocation is referred to as the “relocating parent” and the party opposing the relocation is referred to as the “other parent”
With the number of people constantly moving in and out of the Northern Virginia area, it’s no wonder that relocation cases are some of the most frequently litigated domestic relations cases in our courts. Two separating parents that plan on living relatively close to each other can frequently come to a compromise that can be much more elusive in long-distance relocation cases. Indeed, many parents who even bring up the possibility of a long-distance move are met with an “over my dead body” type response from the other parent.
Regardless, in many circumstances, moves are unavoidable. For example, a recently divorced spouse might find that finances are so tight after the divorce that he or she simply can’t afford to remain in the costly Northern Virginia area. Other times, a new job or job transfer requires relocation. Parties may wish to relocate for a new spouse, or to move to an area they feel is “home,” often to be near relatives and the support network they can provide. Some may feel they would benefit from a fresh start or a change of scenery – a form of “geographic therapy”.
If the request to relocate with the child is made as part of an initial custody determination (i.e. a complaint for divorce or petition for custody), then the Court simply analyzes how the “best interests of the child” factors listed in §20-124.3 of the Code of Virginia apply to the facts of a particular case in determining whether a relocation is justified. If a custody order is already in place, the party seeking relocation needs to clear the additional hurdle of proving that there has been a material change in circumstances since the last order was entered. The burden to prove both is on the party seeking relocation. In the latter types of cases, the existing custody order will most likely require a party seeking to relocate to give the court and the other parent at least 30 days’ notice of the intended relocation. Note that the court cannot prohibit a parent from relocating – it can only prohibit the parent from taking the child with him or her.