A custody or visitation order was entered a year ago, but now your ex-wife, who has primary physical custody of your son, wants to relocate to California with your son. What can be done? Is it possible to prevent your ex-wife from moving? Yes. Can you petition the Court to make you the primary physical custodian? Yes.
Pursuant to § 20-124.5 of the Code of Virginia, in any custody and/or visitation order entered by a Virginia Court, a parent is required to provide the Court and the other parent at least thirty (30) days advance written notice of any intended relocation. Upon receipt of notice of relocation, if the non-relocating parent wants to contest the relocation, then he/she may do so. The non-relocating parent may seek appropriate relief from the Court. Litigation may be commenced by filing a Petition to Enjoin Relocation.
A Petition to Enjoin Relocation requests the Court to enjoin the other parent’s relocation. A Virginia Court has the authority to prevent the other parent from removing the child from Virginia. It is recommended that the non-relocating parent file a Petition to Enjoin Relocation as soon as possible upon receipt of notice of the intent to relocate. A Petition to Enjoin Relocation only addresses a parent’s right to relocate, therefore, often times a Petition to Modify Child Custody or a Petition to Modify Visitation should be filed in conjunction with a Petition to Enjoin Relocation so that the Court may provide appropriate relief in the event the Court allows the relocation.
For instance, if you only file a Petition to Enjoin Relocation, the Court may deny your Petition. In this instance, your ex-wife is not prevented from relocating to California with your son while the present visitation arrangement remains in place despite the fact the present visitation arrangement is no longer feasible because your son is too far away. However, if you had filed a Petition to Modify Child Custody in conjunction with the Petition to Enjoin Relocation, the Court could have, upon presentation of evidence, modified the custody arrangement by awarding you primary physical custody of your son or modified the visitation arrangement by ordering a visitation schedule that is more feasible.
In determining whether to allow relocation, a court balances the rights of three parties: the custodial parent, the non-custodial parent and the child. The burden of proof is on the parent who intends to relocate. The parent who intends to relocate must prove the move will not substantially impair the child’s relationship with the other parent and that the best interests of the child are served by the relocation. While a Court may take into consideration the best interests of the parent who intends to relocate, the best interest of the parent is secondary to the best interests of the child.
Therefore, if you are the custodial parent of your daughter, you have remarried and your new husband has been transferred by his employer to New York, you may be prevented from relocating if a Court determines that the best interests of the child are not served by the relocation. While the Court may not forbid you, the parent, from relocating, the Court has the authority to forbid you from removing your daughter from Virginia.
The custody lawyers at Livesay & Myers, P.C. represent clients in custody relocation cases in Woodbridge, Fairfax, Manassas, Stafford, Spotsylvania and Fredericksburg, Virginia. Contact us to schedule a consultation today.
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