Custody Issues to Consider When Moving Outside of Virginia with Your Child

There are many circumstances to consider when moving to another state or country. To name a few, marriage, schools, childcare issues, connection with extended families, and new job or business opportunities, are all important life decisions to consider.  However, the decision becomes more complicated when the moving party is a child’s custodial parent.  The move may substantially impact the child’s relationship with the other parent, mainly due to the physical distance between the child and the other parent and its impact on the parenting time or visitation schedules.

While no Virginia statutes specifically address the relocation of a custodial parent, Virginia courts treat relocation cases as custody/visitation cases.  It is important to understand that relocation cases may present a different structure than typical initial custody/visitation petitions.

Best Interests of the Children

Relocation cases are never about how the move would benefit the moving parent. Instead, Virginia courts have held that “the welfare of the children is of primary and paramount importance” as to a court’s decision regarding relocating the children.[1] Custody cases are always about the best interests of the children (“BIC”). Accordingly, the party seeking relocation must show how the relocation would independently benefit the child. Thankfully, Virginia law gives guidance on what the BIC factors are. Virginia courts are required to analyze the circumstances under these ten factors as listed under Va. Code § 20-124.3. The 10 BIC factors include:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child (if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference);

9. Any history of (i) family abuse; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury, that occurred no earlier than 10 years prior to the date a petition is filed; and

10. Such other factors as the court deems necessary and proper to the determination.

As a part of this BIC analysis, the court will also consider how the relocation would substantially impact or impair the other parent’s relationship with the child. However, just because the parents currently have a joint or shared custody arrangement, a Virginia court will not at the onset presume that the relocation will harm the other parent’s relationship with the child.

Material Change in Circumstances

If there is a previous custody/visitation order issued by a Virginia court, the custodial parent wanting to move outside Virginia with the minor child must show that a material change in circumstances has occurred since the last custody award, because such parent is essentially seeking a change in the order. Under Va. Code § 20-108, a court will look at factual circumstances to determine on a case-by-case basis whether there has been a material change in circumstances since the last court order, and whether the party seeking relocation has met the burden to prove this condition.

If a court determines that the relocation is not in the independent best interests of the children, then the court will deny the relocation request. Consequently, the court has jurisdiction to order the child to be returned to Virginia and to give the other parent primary physical custody of the child. Therefore, a relocation case has the possibility of dramatically changing the current custody/visitation order.

What if the other parent Already Moved Outside of Virginia with The Child before An Objection to Such Relocation Was Made?

Virginia courts may retroactively approve a move or order a change in custody after an unapproved relocation has taken place. At the hearing, the court’s issue is to determine whether in fact the relocation would independently benefit the child.

However, custodial parents who make an unapproved relocation should be aware of the requirement of Va. Code § 20-124.5 that states if there is a custody/visitation order in place, then such order requires any party intending to relocate to give 30 days’ advance written notice to the court and the other party about the intent to relocate and the intended change of address. This is required by Virginia law and this requirement can only be excused by the court based on good cause shown. In other words, the party making an unapproved relocation with the child may be found in violation of a court order if required notices are not timely delivered to the other parent and the court.

Whether you are a custodial parent wanting to move outside of Virginia with your child or whether you are a noncustodial parent who received notification of the other parent’s intent to move or of the actual move that has taken place, consulting a family law attorney can help you navigate relocation custody cases.

Ra Hee Jeon is a Pender & Coward attorney focusing her practice on family law and immigration matters.      

[1] Parish v. Spaulding, 26 Va. App. 566, 572, 496 S.E.2d 91 (1998)