When a couple has a child and goes through a divorce or separation in Virginia, the ensuing custody battle creates serious challenges for everyone involved. Generally, not everyone involved will be able to get what they want and oftentimes nobody gets the result they want out of the situation. What’s important to remember is that custody battles don’t end just because the court enters a custody and visitation order. A custody battle can continue all the way until your child turns eighteen.
One scenario that can bring the battle back to the surface is the relocation of either the custodial or noncustodial parent. We hear from clients who frequently believe they can relocate as they please, but the courts are going to review any move that necessitates a change to the current custody and visitation order, and could completely alter the custody agreement based on the decision to move and how it impacts the child. We want to make sure you understand how these decisions could change your custody rights.
Relocation distance
The first factor to consider is the circumstances surrounding the actual relocation. If you’re just moving across town or within a distance that won’t disturb the relationship between the child and the other parent, the courts generally won’t get in the way and just need to be notified of the new address. However, if your intention is to move all the way across the state or even across the country the courts could play a major role in determining ongoing custodial rights.
The state requires notice of any relocation be provided to the Court where your last custody order was entered and to the other parent at least 30 days prior to the move.
Relocating before birth
For the mother, relocating while pregnant can have major implications for how custody and visitation are determined. If you’re living outside of Virginia but want to establish custody in the state of Virginia, it’s highly recommended that you move to and establish legal residency in Virginia while still pregnant. This allows you to establish a home state and jurisdiction here for your child.
For the father, relocating closer to your child while the child’s mother is pregnant could present further custody and visitation opportunities unavailable to you if you’re too physically distant. It’s important to get ahead of these conversations, but you can create similar opportunities by moving after the child is born, as well.
Relocating after birth
Once your child is born and custody and visitation are determined, the situation becomes trickier. Virginia law says the custodial parent can relocate with the child only if the relocation is in the best interests of the child and won’t greatly disturb the relationship the child has with the other parent. In Carpenter v. Carpenter (1979), the courts determined the noncustodial parent’s close relationship with their child prevented the custodial parent from freely taking the child from Virginia to New York. This means a parent having a strong personal reason to move will not suffice, but the courts will take a general overview of the situation to review the pros and cons for your child.
When a parent is relocating and the relocation requires an adjustment to the existing custody and/or visitation order, the parent must file a motion to amend. The court will ask how the amendment would serve the best interests of the child. A number of factors can support a relocation, such as moving closer to other family members, moving to start a job with a significant raise or schedule adjustment which would improve the quality of life for the child, getting your child into a better school, or other similar circumstances.
A frequent question that the court or opposing counsel will often ask of the relocating parent is “do you plan to move even if the court declines the child’s relocation?” This is essentially a ‘Catch 22’ scenario. Answer “Yes” and it may appear as though you are prioritizing your life, wants and desires over your child’s. Answer “No” and you may have appeared to have solved the problem, i.e. remain where you are and all is well. Before requesting the Court to permit your relocation with your child(ren), you may want to consider how you would respond to this question and your reasons therefore.
Speak to an attorney
The safest way to make sure you’re able to relocate your child when necessary is to get ahead of your plans and consult with an attorney well in advance of your desired move date. You should work closely with a family law attorney who understands Virginia law and can assist you in understanding your options and the best ways to reach your desired result.
At Rinehart Bryant, PLLC, we are your Virginia family law firm and have the experience to make sure you get the best result for your family. Contact our offices today to make sure you fully understand your rights, options, and legal requirements.
Rinehart Bryant, PLLC
