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.
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 any case involving custody in Virginia, the court will require a minimum of 30 days advance written notice prior to any relocation pursuant to Virginia Code Section 20-124.5. In some situations, more notice may be required. For example, parties who reach a settlement agreement may add additional time requirements or limitations on the ability to relocate.
The notice requirement is designed to protect parents that object to the relocation and provide an opportunity for the court to make a determination regarding the move. Whether or not the minor child will be allowed to move with the parent is determined according to the best interests of the child.
Both the custodial and noncustodial parent must provide notice prior to any relocation, even if the move is only a short distance. Any change in a parent’s residence can have an impact on the parties’ ability to coordinate visitation for the child.
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:
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. No relocation case is straightforward and any missed deadline can have a serious impact on your custodial rights.
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.
Melone Hatley, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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.
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