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Not So Fast—Agreements Permitting Relocation May Not Be the Last Word

The rise in remote work over the past two years has allowed people far greater flexibility in choosing where they live. They no longer must live in the city, state or even country where their job is located. Add that to the “usual” reasons that people typically move (new job, family, military orders, government orders, education), mix in a few children and a separation or divorce and you have a recipe for a relocation custody case.

If someone has a job or works in an area that they know will require a move (like receiving Permanent Change of Station orders in the military) and they’re going through a separation or divorce, they may wish to include provisions into any settlement agreement allowing them to move with the children without having to go through the process of modifying physical custody. Unfortunately, including a provision that one parent will automatically get primary physical custody (in a shared custody situation) if there’s a move or be allowed to move outside a certain geographical radius may not be as bullet-proof as one might think. 

Relocation is one of the most litigated issues that can arise in the context of family law. One parent wants to move the children out of state (or even just out of county or school district) and the other parent objects to the move—those are diametrically opposed positions that don’t leave a lot of wiggle room. Regardless of the reason for the move (which is highly relevant to the analysis), Virginia courts have long held that the following two requirements must be met for a party to prevail in their request for relocation:

  1. There must be a material change in circumstances; and
  2. The relocation must be in the child’s best interest (including that it will not substantially impair the relationship between the child and the non-moving parent).

Assuming there is a court order in place (which includes settlement agreements that have been incorporated into a Final Order of Divorce), “the relocation of a custodial parent constitutes a material change in circumstances.” Parish v. Spaulding, 26 Va. App. 566, 572 (1998). The first hurdle is quickly cleared by a parent who has given notice of their intent to move or a parent who has already moved.

The second requirement, the best interest of the child, is governed by Virginia Code § 20-124.3. It has long been established that when determining custody, the child’s best interests are paramount, and the decision must be based on the circumstances existing at that time. Scinaldi v. Scinaldi, 2 Va. App. 571, 573 (1986).

In Wilson v. Wilson, the trial court granted the parties joint legal custody, the mother primary physical custody, and granted the mother’s request to move from Virginia to Nashville, Tennessee. However, the trial court also ordered that, if the mother moved from Nashville, primary custody of their son would automatically transfer to the father. 12 Va. App. 1251 (1991). The appellate court reversed and overturned that portion of the trial court’s order. It found that a predetermined automatic reversal of custody, based on an undetermined move, is an abuse of discretion. It specifically stated that a move in the future may prove to be in the child’s best interest but that could not be determined until all the circumstances associated with that move were known. Conversely, even if the parents agreed to a future move, that move may not be in the child’s best interest at the time it occurs, and it is within the court’s jurisdiction to make that determination. The Wilson court refused to “indulge in sheer speculation about what may be in the best interests of the child at some imprecise time in the future by providing an automatic change in custody based upon a future event that may or may not occur.” The court in Demuth v. Demuth followed Wilson and reversed the same type of provision ordering an automatic change in custody if the mother were to move out of Virginia. 2008 Va. App. LEXIS 453 (2008).

These holdings could present a considerable challenge to a party’s position that their court order allows them to move regardless of the circumstances. Although a parent may know, with some certainty, that they will have to move somewhere at some point, unless they can pinpoint the date and location of that move, it’s possible that a trial court would refuse to enforce a provision allowing the move over the other parent’s objection.

The more specificity a party can include as to the location and timing for a move, the better, but based on the court’s power to assess the best interest of the child at the time a decision is made, it may not be enough.

If you have children, a job that will or may require you to move, and are going through a separation or divorce, it’s important to discuss all your options regarding a possible relocation with a knowledgeable attorney. Likewise, if your divorce order contains a provision that seemingly allows you to move and, after receiving a transfer or orders, the other parent is objecting to the move, it’s critical to seek legal counsel. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg, Manassas and Fredericksburg-Stafford, representing clients throughout Northern Virginia. Contact us to schedule a consultation today.