Child Custody in Virginia… Can I Relocate Out of State?

Let’s start with a real-life scenario: John and Susan share physical custody of their daughter, Mary.  They live about 10 minutes apart in the same Virginia town, and though Mary’s primary residence is with her mother, Susan, John spends several days a week with his daughter.  He goes to her school functions, never misses a soccer game or piano recital, and takes her to church every Sunday.  Susan would like to relocate to Dallas.  She has gotten a new job there with a larger salary, and she will be close to her parents, Mary’s grandparents, and other extended family.  The schools are great and she and Mary will have a higher standard of living there, which will give Mary many more opportunities. John does not want Susan and Mary to move.  He is involved in her life and does not want to lose contact with his daughter for extended periods of time.  John feels he is being cut out of Mary’s life and that the move will make it nearly impossible for visitation with Mary to continue. Custody and visitation Parents who are separating often wonder whether they can move out of state, and whether they can move their child with them. Whether it’s for a better job prospect, a new relationship, or to have support of extended family, parents need to take extra precautions before deciding whether to make a move following separation or divorce. In Virginia, if a parent wishes to relocate, he/she must give at least 30-days written notice to the other parent. If your co-parent moves away without giving written notice, they will likely be in contempt of court. A custody order is not set in stone and may be modified by the court at any time after the divorce.  If you share custody of your child with your co-parent, and the two of you can’t come to a decision about relocation, the court will step in and decide with which parent the child remains. In relocation cases, the court is interested in only one thing: whether the best interests of the child will be served by modifying the existing custody order and allowing the relocation.  The court does not take into consideration whether the relocation is in the parent’s best interest.  The court focuses on these three factors:
  1. The reason for relocation, including employment opportunities, standard of living, and contact with extended family members, and how it will enrich the child’s life.
  2. The effect a relocation will have on the relationship of the non-custodial parent and the child.
  3. How the relocation will affect the non-custodial parent’s visitation with the child.
It is important to note that under Virginia law, the parent seeking to relocate has the burden of proving that relocating is in the child’s best interest.  A non-custodial parent who has a positive relationship, is involved in his/her child’s life, and maintains an active, on-going interest has a much better chance of preventing a relocation than a parent who has little or no involvement.  It is also important to understand that even if a parent has sole legal custody, that does not give him/her the unilateral right to relocate out of the jurisdiction with their child.  The court does not look favorably if it feels that the parent requesting relocation is being manipulative and the move is designed to cut off family members who currently have a legal right to see the child. Modifying visitation If you look at the scenario at the beginning of this article, it is obvious that if the relocation is granted, John will no longer be able to be as involved in his daughter’s life as he currently is.  With over 1000 miles between them, he won’t be able to be an active participant in her daily life, go to parent-teacher conferences, attend her games and recitals, or take her to church.  Current visitation won’t be able to continue in this new situation. The court will need to step in and modify the visitation order.  The court usually tries to make up for the “lost time” the non-custodial parent now misses with the child.  For example, the court may change the order from three nights a week and 2 weeks of summer vacation, to 4 three-day federal holiday weekends a year, plus six weeks of summer vacation, and the winter or spring break.  Visitation would be less frequent, but longer in duration. There are never any guarantees as to what the court will decide.  Whether you are the custodial parent seeking to relocate or the non-custodial parent trying to prevent a relocation, the first step towards protecting your rights is to hire an experienced Virginia family law attorney with expertise in custody and relocation matters.  Your attorney will work hard to make sure you are treated fairly by the court.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about custody, visitation, relocation, and family law, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Virginia Child Custody and Visitation FAQs

After a divorce or the dissolution of a relationship, there are decisions to make regarding custody and visitation of minor children. Who will be the primary caregiver of the child? Will we share both legal and physical custody? What will the visitation rights be? The courts will have their own questions as well when making decisions regarding child custody and visitation. Take a look these FAQs and their answers to better understand the process.

What custody/visitation rights do parents in Virginia have before any court orders have been entered?

In the absence of a court order, both parents have equal rights to the physical custody of their minor children and to make decisions on behalf of their children. The parties could agree on how to handle custody and visitation prior to the court hearing and have their agreement entered as a consent order. Alternatively, either party could file a motion for pendente lite relief and ask the court to enter a temporary order for custody and visitation to remain in effect until the court makes a final determination.

How do judges make decisions about child custody and visitation?

Judges make child custody and visitation decisions based on the child’s best interests. Judges consider a variety of factors they believe to be important to determining the child’s best interests when making a decision.  One important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the other parent remains a strong part of the child’s life.

What factors might be considered when awarding custody and visitation?

Below you’ll find an extensive but not exhaustive list of potential factors. Keep in mind that the court may take into consideration any factors they believe to be relevant to the case and in the best interests of the child.
  • Who is the current primary caregiver
  • Living arrangements for each parent
  • Which parent is better able financially to take care of the child
  • What is the psychological and physical fitness of each parent
  • What is the child’s preference
  • Age and health of each parent
  • Age, health, and gender of the child
  • Religious views
  • How close the parents live to each other
  • How close they live to members of the child’s extended family
  • Which parent lives closest to the child’s school and social circle
  • Length of separation and where the child has been living
  • Any prior abandonment or surrender of custody issues

What are the different types of court ordered custody?

There are many different types of court ordered custody to be aware of:
  • Legal custody: This type of custody includes rights and obligations to make decisions for the child regarding health care, education, religion, and other important matters.
  • Physical custody: As it sounds, physical custody encompasses the rights and obligations to care for the child physically
  • Temporary custody: This type of custody is granted while parents wait for the hearing. Also called Pendente Lite custody, it is made based on the child’s best interests and does not determine the final custody decision.
  • Sole custody: The child has only one residence with one of the parents. Parents may receive sole physical custody, sole legal custody or both.
  • Split custody: When 2 or more children are involved, one child lives with one parent and the other child lives with another parent.
  • Joint legal custody: In this type of custody, both parents can make decisions with the same amount of legal rights and obligations.
  • Shared physical custody: Parents share the physical custody of the child, alternating who cares for the child during set time periods.

How much say does a child have in a custody decision?

A child under the age of 18, who has not been legally emancipated, cannot choose which parent to live with in Virginia. That decision rests with the child’s parents or, if a custody order has been entered, then with the court. If a child is old enough to make a rational decision, the court may take the reasons for their preference into consideration. This scenario is typically the case with older, more mature children.

Can third parties and grandparents be granted custody?

The short answer is yes but rarely. The biological parents of the child bear the presumptive right to custody. Grandparents, other relatives, and other third parties may be considered if both parents are unfit.

I’m the mother. Am I guaranteed custody?

No. In fact, judges and courts are not permitted to give preference to one gender over the other when making a custody or visitation decision. The best interests of the child always come first. Despite the abolishment of legal preference to granting maternal custody, you may still find judges who are biased and prefer to award females custody.

Do I need to go to court to get custody and visitation of my child?

The simple answer is no, but it is best for final decisions of the parties to be reduced to a court order for clarity and compliance.  If you reach an agreement before beginning the proceedings, it will typically make for a smoother and easier process and custody and visitation can be determined through a formal signed agreement. This agreement is then entered into a final order. Parties can retain counsel to negotiate or review agreements and can also use other services, such as mediation. While custody matters are personal and in the best case decided outside a courtroom, legal services are useful in helping the parties reach a final agreement which can be incorporated into an order.

My spouse fails to pay ordered child support.  Can I deny him/her visitation until he/she pays?

No. Other remedies exist to get a non-paying party to comply with paying child support. Withholding visitation is not one of these remedies.

Is a custody or visitation award considered permanent?

No. The Virginia courts retain jurisdiction to review and modify all orders of custody and visitation.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about custody and visitation rights, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

© 2020 Melone Law P.C.