Divorce, Child Custody and Relocation

Contested divorce cases are difficult. However, cases where children are involved can be extremely stressful and taxing affairs. It is, therefore, not uncommon for a parent to want to relocate out of state to find a new job and new life away from their previous marriage. It is also understandable that they might want to relocate to be near better job opportunities or child support options during this trying time. With regards to divorces made in the state of Virginia, it is legal for a parent to relocate out of state with their child, but there are many additional factors to account for. The specifics of the divorce case and the current stage of the separation both need to be taken into account.

Custody and Relocation

According to northern virginia relocation law, both parents are assumed to be acting within the best interest of their child. This includes any relocations the parents may do before a court reaches its final decision. If a parent relocates with the child before a court order is given, they might be held in contempt by court, having violated their now clear custody and visitation rights. This can even lead to criminal charges. Each court ruling is unique, and it is always best for the relocating parent to wait until the court order is complete before relocating with the child. Once issued, the parent then needs to verify that they have court permission to relocate.

Physical and Legal Custody Defined

Physical custody most commonly belongs to the parent who lives with the child. This parent is referred to as the custodial parent. Legal custody, on the other hand, refers to the individual’s rights to be included in decisions and responsibilities associated with raising a child. This parent is referred to as the non-custodial parent. The child may live with both parents at certain times, but physical custody belongs to the parent that the child lives with most often.

Possible Criminal Charges

As with any child custody dispute, Virginia court orders are given with the best interest of the child in mind. State law dictates that it is a misdemeanor to relocate a child without permission from the court. If the relocation takes the child outside the state, the relocation can become a felony, as stated in the Parental Kidnapping Prevention Act (PKPA) of 1980. Va. Code Ann. § 18.2-49.1. Under this act, a parent who deliberately keeps a child from their rightful custodial parent and knowingly defies the court order is subject to a Class 6 Felony for parental abduction. Furthermore, Va. Code Ann. § 18.2-47 makes it clear that any parent who purposefully denies visitation, custody or legally giving access to the child can also be guilty of abduction and charged with a Class 6 Felony.

Considerations of the Court to Custody and Relocation

Courts consider many different factors when awarding custody and allowing relocation of the custodial parent. To this end, neither the father nor mother is judged to automatically be the best custodial parent. In regards to Virginia courts, relocation is generally given when the relocation is in the best interests of the child. This consideration is only given to the child’s interests. If a parent has remarried, found a better job or simply wants to relocate to another state, they must separately prove to the court that the relocation is best for the child.

The Procedure of Relocation

Once the court is decided and the order entered, a custodial parent wishing to relocate outside of the state must provide the other parent and the court with a written notice thirty days in advance. This includes the intended location and the change of address as stated in Va. Code Ann. § 20-124.5. If the other parent disagrees with the intended relocation, the court deliberation can take longer than six months to reach a decision. Depending on the circumstances, a court may allow the child to be relocated. Courts can also issue orders preventing the child from being relocated until the final decision is made. All parties are still subject to the final rulings of the court in these cases.