Custodial Parent Relocation In Virginia

Posted on June 25th, 2009, by James Livesay in Custody, Family Law. 22 comments

Child Holding Hand“Can the Father or Mother of my child stop me moving out of the area?” 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, custodial parent relocation has steadily become a hot topic in custody cases.

What is the Standard for Relocation in Virginia? Virginia law does not provide a bright-line rule for custody relocation cases; meaning, one cannot merely turn to the Virginia Code for a simple “yes” or “no” on relocation in a given case. Instead, courts in relocation cases will apply this more subjective test: whether the best interests of the child will be served by modifying an existing custody order to allow relocation. Note: the test is whether the move is in the child’s best interests, not the relocating parent’s best interests.

Courts will focus on the following factors in determining whether relocation is in the child’s best interests: (1) the effect relocation will have on the relationship between the non-custodial parent and the child, (2) how drastically the relocation will affect the non-custodial parent’s visitation with the child, and (3) 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.

It is important to note that, under Virginia law, the party seeking to relocate the child has the burden of proving that the relocation will be in the child’s best interests. If he or she cannot do that, then the court will not allow the relocation.

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.

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.

Whether you are seeking to relocate or to block relocation, consult with an experienced attorney as early in the process as possible. The custody lawyers at Livesay & Myers have years of experience handling custody relocation cases in jurisdictions across Northern Virginia. Contact us to schedule a consultation today.

See also: How Does Relocation Affect Your Custody and Visitation Order?

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s four offices.


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