Custody Cases Involving Relocation

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”.

The law:

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.

The moving party also bears the burden of proving that the relocation will not substantially impair the relationship between the child and the other parent. Interestingly, this can be proven in seemingly contradictory ways. In some cases where the other parent is a disinterested, rarely involved parent, courts have found that there isn’t much of a relationship to be impaired by a relocation. However, in other cases where the other parent is “super-involved” and has a great relationship with the child, courts have found that the parent-child bond is so strong that the move should be permitted, as the bond would survive it.

When courts have allowed the relocation (especially long-distance relocations), they typically give the other parent less frequent but longer visitation periods. For example, rather than getting two weekends per month, the other parent might get most if not all of the child’s major breaks from school – including the bulk of the summer. On occasion, courts have found that this “less frequent but longer” visitation time makes up for the lack of more frequent contact and thus does not substantially impair the relationship between the children and the other parent.

Courts also have considerable discretion to apportion the costs of long-distance travel and to designate who is responsible for making travel arrangements. Thus, a Virginia court may allow a party to relocate with the child, and then require that same party to pay for all visitation-related travel, including airfare.

What the courts are considering:

So, what is important to the court in determining if a move is in the child’s best interests? No one factor is determinative. Indeed, while the court must consider all the statutory factors as in a regular custody case, the court has discretion to weigh those factors however it chooses. In weighing those factors, some of the primary and recurring reasons the courts have cited when allowing relocation are:

  1. the benefit of keeping a child with the primary caretaker
  2. the child’s familiarity with the “new” community, including previous visits, friends, relatives, etc.
  3. the benefit to the child where living in a lower cost-of-living area frees up the relocating parent’s resources
  4. the ability of the relocating parent to go from a working spouse to a stay-at-home parent and thus be more available to the child
  5. deteriorating financial circumstances that would ultimately force the relocating parent’s constant moving and instability
  6. the other parent’s disinterest or “johnny come lately” approach to parenting
  7. the inability of the other parent to provide stability and structure
  8. the ability of the other parent to maintain long-distance visitation because of job flexibility and financial resources
  9. the anxiety a child experienced due to the week on/week off custodial schedule that would have gone on had there been no relocation

 

Some reasons that courts pointed to for not allowing relocation are:

  1. the children were happy, well-adjusted, academically successful, and otherwise thriving under the status quo (“if it ain’t broke…”)
  2. the relocating parent’s desire to move was based on her new spouse wanting to be closer to his children
  3. the other parent was involved with the children’s activities, homework, sports, and extracurricular activities, and relocation would have impaired that involvement.
  4. the other parent was an active participant in the children’s lives on a daily basis
  5. the relocating parent’s desire to move was based on her desire to “erase” the other parent from her life and start fresh
  6. the move would have a severely negative impact on the children’s relationship with the other parent
  7. the other parent’s immigration status would affect his ability to visit the children several states away

 

Conclusion

The decision to attempt to relocate with a child is one with considerable factual, financial, and legal ramifications, and should not be taken lightly. Parents considering such a decision should form a “moving strategy” well in advance of the actual notice to relocate. An experienced domestic relations attorney can help you develop that strategy and maximize your chances of being allowed to relocate with the child. And if you’re on the other side of that situation, an experienced domestic relations attorney can help you develop the best case for ensuring that your child stays close.

Frequently Asked Questions

How to change custody agreement in Virginia?

If there has been a material change in circumstances such that custody and/or visitation of a child or children should change, a party can file a Motion or Petition to modify custody and/or visitation with the court.  A judge may then decide after a hearing that the requested change is warranted.

What constitutes as a material change of circumstance for a Child Custody Virginia?

A material change in circumstances can encompass a broad range of things.  Often these are negative – a child or parent is having problems. However a material change in circumstances can also cover positive changes as well.  For example, a parent who had little or no time with a child because of former instability may be able to get increased time upon a showing that they’ve turned their life around.


 
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