Relocations in Virginia Child Custody Cases
"Can the Father or Mother of my child stop me moving out of state?” is a familiar question heard by many family law attorneys. The answer is “yes, they can certainly try.” In fact, given the current trend of Virginia law making it harder on parents wishing to relocate with their children, the odds are good that the non-relocating parent might successfully block the child’s relocation. With more and more parents finding the need to move due to family connections, changes in employment and varying costs of living in different states across the county, relocation has steadily become a hot topic in custody cases.
Best Interests of the Child Test
Unlike most issues that arise in family law, no statute specifically addresses the issue of relocation; so, one cannot merely turn to the Virginia Code for a simple “yes” or “no” on relocation in a given case. Instead, whether the child’s best interests will be served by modifying an existing custody order to allow relocation is the key question for courts in relocation cases.
Burden of Proof
Under Virginia law, the party seeking to relocate the child to another state has the burden of proving that the relocation will be in the child’s best interest.
Factors for Determining Best Interests of the Child
Virginia law focuses on the following factors in determining whether relocation is in the child’s best interests:
- the effect relocation will have on the relationship between the non-custodial parent and the child,
- how drastically the relocation will affect the non-custodial parent’s visitation with the child, and
- the reasons why the custodial parent wishes to relocate, including contact with extended family, economic stability, and employment opportunities.
While hearing evidence on all these factors, the court will also be interested to know the present level of involvement of the non-custodial parent. If the non-custodial parent has little or no involvement with the child, then the court will take that into consideration when evaluating the effect the relocation will have on that relationship.
Put another way, a non-custodial parent who has maintained an active involvement in the child’s life will have a much better chance of blocking a proposed relocation than a non-involved parent.
Does Virginia Apply the "Unity of Interest Test"?
No. Virginia law does not equate the best interests of the custodial parent with the best interests of the child. However, Virginia custody law does acknowledge that the parent’s and the child’s best interests often overlap. For example, if the custodial parent is able to find better employment in a different state, then that added financial stability will be in the best interest of both the custodial parent and the child.
Advice for Parents
Whether you are the parent who wishes to relocate or the parent who seeks to prevent your child’s relocation, remember that there are never any guarantees as to what the court will decide. If you are the non-custodial parent, it will be important to present as much evidence of your positive relationship with your child, and steady involvement in the child’s life, as possible.
If you are the custodial parent, you will need to provide the court with as many reasons as possible why the relocation will be in the child’s best interest, while describing for the court in detail what the child’s life will be like in his or her new location.
Modification of Visitation
If the custodial parent is allowed to relocate with the child, the court may well need to modify the existing visitation arrangement. As an example, imagine a situation where the non-custodial parent, custodial parent, and child have all been residing just 10 minutes from each other, in the same county in Virginia. The non-custodial parent has been exercising regular visitation with the child—every other weekend, a couple of weeks in the summer, and alternating major holidays.
Now imagine that the custodial parent is allowed to relocate with the child to another state, and that the drive between the two parents’ houses will thus be increased from 10 minutes to say 10 hours. Obviously, the every-other-weekend visitation probably cannot continue in this situation; thus, the court will need to enter a new visitation order to reflect the new status quo.
But note: the court may attempt to make up to the non-custodial parent the “lost time” with the child. For example, the court might change visitation from every other weekend and two weeks in the summer to one weekend every month plus five weeks in the summer—or six weeks, seven weeks, etc. The non-custodial parent’s visitation would become less frequent, but of longer duration, upon the relocation.
Our Virginia Custody and Visitation Lawyers
Attorneys James Livesay, Amanda Foley and Matthew Kurylo, the Virginia child custody and visitation lawyers at Livesay & Myers, are experienced in handling relocation cases throughout Northern Virginia and Richmond.
Contact us to schedule a consultation with one of our Virginia custody and visitation lawyers today.
