Child Custody And Relocation Under Virginia Family Law

When two people separate or divorce, the distance between their homes can become a number one concern if transporting children back and forth is involved. This is especially true in such on-the-move areas as Northern Virginia, which makes relocation battles among the most frequently litigated court cases. When a long-distance move suddenly becomes a real possibility for one parent, the response from the non-mover is often “over my dead body.”

Relocation and the Law

Despite concerns over the welfare of involved children, in many circumstances, long-distance moves are unavoidable. If such a move is part of the initial divorce plans, for instance as part of the petition for custody, the Court determines how factors concerning the “best interests of the child,” listed in the Virginia Code, would apply to a relocation issue. When a custody order already exists, the parent who seeks relocation must give evidence of a change in circumstances that requires relocation. He or she generally is required to give the Court and the other parent at least a 30-day notice of the change.

In relocation cases, the Court cannot prevent a parent from relocating. The Court can only prevent the moving parent from taking a child with him or her.

Relocation Responsibilities

The parent who seeks to relocate with a child or children must show that the move will not damage the relationship between the child or children and the parent who is not moving. The proof, however, sounds contradictory. For instance, if the non-moving parent in such a case has a disinterested or rarely involved role in the welfare of the child, the Court has often regarded relocation as a minor, if any, change in the child’s life. However, if the non-moving parent is “super-involved,” showing a close, binding relationship with the child, the Court has often also seen relocation as a minor change, this time seemingly feeling that the relationship is strong enough to withstand the distance.

When relocation is granted, especially for long distances, the Court typically gives the other parent less frequent but longer visitation periods. Instead of two weekends per month, a parent might be granted most or all of the major time-off-school periods or most of the summer break. In some cases, the Court has decided that “less frequent but longer” visits make up for less frequent contact overall and does not impair the relationship between children and the parent at home.

The Court has discretion in naming the parent to be responsible for making travel arrangements. For instance, a Virginia court may allow one party to relocate with a child, but require the same party to pay for all visit-related travel, including airfare.

Court Considerations

What are the factors that determine a child’s best interests when relocation is involved? There is no one major factor. The Court must consider all points in a regular custody case, but it has discretion to weigh those factors however it chooses.

These are the primary reasons the Court has cited when allowing relocation:

  • Benefit of keeping a child with the main caretaker
  • Child’s familiarity with the new community, including previous visits, friends, or relatives
  • Benefits to the child if a lower cost-of-living area increases resources of the relocating parent
  • Ability of the relocating parent to shift from working full time to staying at home and becoming more available to the child
  • Failing finances that would ultimately force the relocating parent into constant moves
  • Inability of the other parent to provide stability
  • Ability of the other parent to maintain long-distance visits because of job flexibility and financial resources
  • Anxiety of a child due to weak on or off schedule

Courts have allowed relocation for several reasons. The child may be currently well-adjusted, academically successful, and otherwise thriving. One parent’s involvement with the child’s activities, including sports and other extracurricular activities, would make relocation difficult. The non-relocating parent is an active participant in the child’s life on a daily basis. The desire to move is based on one parent’s aim to exclude the other parent from his or her life and gain a new start.

The decision to relocate with a child should be taken only after serious financial and legal considerations. Parents who are involved in relocation should form a “moving plan” with the aid of an experienced domestic relations attorney. This strategy can maximize the chances that the Court will okay the move. It can also help to ensure that the child or children involved can stay close to and can benefit from both parents. Contact us if you are facing questions regarding relocation and child custody.