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, be sure to consult with an experienced custody lawyer in your jurisdiction. From our five convenient office locations, the custody attorneys at Livesay & Myers, P.C. represent clients throughout Northern Virginia. Contact us to schedule a consultation today.

See also: Child Custody and Visitation Law in Virginia

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About 

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.



22 responses to “Custodial Parent Relocation In Virginia”

  1. Soon-to-be divorced Dad says:

    Can anything be written into the initial divorce decree that prevents the custodial parent from relocating so many in-state miles from the other? So that the other couldn’t move from Fairfax County to Richmond or Virginia Beach? Thanks.

  2. Jim Livesay says:

    @Soon-To-Be Divorced Dad – that’s a tricky one. Courts generally will not go for that sort of language in a divorce decree or other custody order. If you ask the Judge for it, he/she will simply tell you “we’ll deal with any potential move if and when it comes up.” Just in general terms, the Court would rather address the proposed move in the future, if and when the custodial parent notifies the noncustodial parent of the move.

    Having said that, I have seen parties negotiate language in their Separation Agreement, along the lines of what you describe– stating the custodial parent will not move more than so many miles from a certain city/county/place, etc. without the consent of the other. If the parties both agree to that language, they can include it in their signed Separation Agreement, and then have that Agreement “affirmed, ratified and incorporated” into the Divorce Decree. At that point, said language has become a court order effectively, and so it’s completely binding on the parties.

    However, any court-ordered provisions dealing with custody and visitation may be modified in the future based on a material change of circumstances and the child(ren)’s best interests. So, even if the parties had agreed to a “no moving more than X miles from Y location” provision, and it had become part of a court order— if some circumstances arise in the future that warrants it, the Court could come back and modify the court order to allow any move.

  3. Tbrown says:

    In 2012, I got a job offer in another part of Virginia which would have significantly raised the standard of living for me and my 2 daughters. I gave my ex notice, and of course he file a petition to prevent the move and a motion for a change of custody. We went to court and my request to relocate was denied due to our shared custody status and his supposed involment with the children. Not three months later, and he relocated and all but forfieted his visitation rights. On our last hearing I presented the judge with a modified schedule of visitation which included every other weekend, major breaks from school and 4 weeks in the summer. He informed the judge that he did not want any visitation but four weeks in the summer. At the same time, he was requesting a suspension of his child support (which was denied). The judge’s order says that he is able to have liberal visitation that is mutually agreed on and with the assistance of a co-parenting counselor and I retained primary physical custody. That order was rendered nearly 6 months ago and he hasn’t made any effort to arrange for visits except for going by the children’s schools to each lunch with them. He now lives in another state and is remairred. Can I petition the court to have my child support increased due to the number of days of visitation decrease AND, if I now want to move does there need to be another hearing or can I just inform the courts that I am leaving? Thanks

  4. Benjamin Carafiol says:

    @Tbrown, as so often happens in these types of cases, the short answer is: “it depends.” Generally speaking, you always have the option of asking the court to change child custody, visitation or support based on a material change in circumstances. For child support, a decrease in contact between children and the non-custodial parent can in some cases justify a support change. Child support guidelines for shared custody – where both parents have at least 90 days of time with the children – factor in the number of days the children are with each parent.

    If your previous order was shared custody, then the father’s reduction in time would justify an increase in support. Based on the minimal contact the father is having, child support would need to be recalculated under the sole custody guidelines as he is having less than 90 days per year with the children. If your child support is already under the sole custody guidelines, his decreased contact is not likely to impact support. Other changes, like increases in income, may still justify an increase in child support.

    As for your desire to move, you will still need to give him notice of your intent to relocate, and he will still have the chance to object and force a judge to hear the case. If he takes no action upon receiving notice of your intent to relocate, then you are free to move.

  5. E Oliver says:

    Is thre anything I can do if the custodial parent moves to another part of Virginia without 30 days notice and I am listed in the court order as doing all the driving? as a resault of the move I would have to drive two and a half hours one way every Monday and Tuesday.

  6. Benjamin Carafiol says:

    @E Oliver, from a timing perspective you may not be able to file to prevent the custodial parent’s relocation. You are still able to file a Motion to Amend Custody or Visitation and ask the court to at the least revisit the question of transportation. The court could require the other parent do all the driving because of their decision to relocate. The court might even make a change to the visitation schedule now that you and the custodial parent are hours apart instead of just minutes.

  7. momofmany says:

    Hello,

    I have sole physical and legal custody of my children and their biological father has supervised visitation as agreed upon by all parties (me, him and the supervisor). I had a 2 year protective order against him and he has a history of physical abuse of me and the kids and a history of drug abuse. I have since remarried and the kids consider my husband their dad and have no relationship with their father. During their minimal visits he is on his cell phone most of the time. I am very likely to be laid off because of cutbacks in my company so we would like to move to another state for better job opportunities and to give the kids a fresh start. They are still terrified of him harming them. Do I need to petition the court to allow me to move or can I just send him my intent to move 30 days prior?

  8. Benjamin Carafiol says:

    @Momofmany, without reviewing the specific terms of your orders I can’t say for certain, but the Virginia Code would only require you to give him notice of your relocation. At that point the burden would shift to the biological father to object. If you wanted to ask the Court to modify custody based on your move you have that option, but until you or the biological father ask the Court to take action the current orders will remain valid.

  9. SIssy says:

    I have recently relocated from TN to VA and I am the primary custodial parent but we share visitation 50/50. My relocation is complete and done according to TN law and agreed upon by my ex. My question is can I move all of my custody stuff to VA instead of TN. Can I file for a review of custody in VA since me and my son are residents here or do I have to continue to use TN until he is 18 years old?

  10. Benjamin Carafiol says:

    @SIssy, whether and when you are able to transfer control of your case from Tennessee is going to be governed by Tennessee law. Every state has adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). There is some variation from state to state, but generally a state issuing a custody order shall have continuing and exclusive jurisdiction to modify that custody decision. Typically, as long as the child or one parent continue to live in the state that issued the custody order the state shall keep control over custody.

    This issue, as with many custody questions, will revolve around the individual facts of your case. Please contact us if you are in the Northern Virginia area and would like to discuss the specifics in greater detail.

  11. Pamela Kenney says:

    I am in the same boat like most want to relocate. My fiance is a Family law attorney in NY and I live in VA Beach. I want to take my 7 year old son with me. His quality of life will be so much better, i will finish school for Nurse Practictioner and no living expenses. How hard do you think it will be to convience a judge its in the childs best interest and not mine?

  12. Benjamin Carafiol says:

    @Pamela, the important thing you have to consider in this situation is your son’s relationship with his father. The benefits you outlined will have to be balanced against the strains placed on the father-son relationship. How active the father is, how frequent contact has been, all of these can influence the court’s decision in a relocation case.

  13. Danni says:

    I have a current order in Henrico co. which states that I share legal joint custody of my two children (12 & 7) with their father. I maintain physical custody and he has visitation every other weekend. I recently petitioned the court for a motion of amends for visitation. My job is relocating my department to Tampa and I have tenure within my role. I was very descriptive in my request: summer and spring break, alternating holidays spent here in va with him. Cost of transportation I will cover for them arriving while he covers the cost of them returning to tampa. My employer is requesting my start date begin in tampa on 6/1… it’s feb, I feel that I’m being proactive in my case, I have also attempted to discuss this change with their father before hand but he is not willing to discuss. How likely will it be that judge will deny my request.

  14. Benjamin Carafiol says:

    @Danni, it’s impossible to give you a hard and fast probability on what the judge is going to do with your case. It sounds as if you are doing a lot to help your case. If their father won’t discuss the issue with you, there’s no way to force him. Relocation comes down to whether the move is in the children’s best interests, so make sure that your case to relocate to Florida focuses on the benefits to the children and not just the benefits to your career.

  15. Kasey says:

    Does Virginia have a code requirement about the minimum amount of time that should be given to a parent that is moving out of state? I am the primary for my 2 year old child, but worried that if I decide to move that primary will be given to my ex. I am wondering what could be the worst case scenario in how much time I could be allocated.

  16. @Kasey, no, Virginia does not have a specific code requirement indicating a minimum amount of visitation to which a parent is entitled. The Court has discretion to decide how much visitation each parent has with the child. In determining custody and visitation arrangements, the Court will determine what is in the best interests of the child by considering the factors that are outlined in Virginia Code Section 20-124.3.

    As mentioned in the article above, the Court does have the discretion to change primary physical custody based on your desire to relocate if the other party files a Petition to Modify Child Custody. In deciding whether to grant such a petition, the Court will determine if the move is in the child’s best interest. However, it is impossible to determine at the outset if such request will be granted if your ex does choose to petition for a change in custody.

  17. Dan says:

    what actually constitutes a relocation? My ex (custodial) wants to go on an extensive (3 months to a year) assignment out of state. spouse wants me to supply care during the school week. spouse wants to return for long weekends to visit. It is clear that removing the child would not be in the childs best interest (at this time – who knows what will happen later.)
    at what point does failure to provide supervision constitute abandonment?
    If I accept, does a prolonged absence constitute a de facto change in custody

  18. Matthew Smith says:

    @Dan, your ex-wife’s actions have provided a golden opportunity for you to seek a modification of custody and visitation, if you so choose. There will be no de facto change in custody without a new court order in place. To get one, you’ll need to be proactive. If having primary custody is your goal, I would suggest the following approach. First of all, accept the additional custodial time without condition. Then, once the new arrangement has begun, you could say to her, “We should enter into a court order reflecting the new arrangement, because our current court order is now outdated.” If she refuses, then you could file a Motion to Modify Custody and Visitation, citing her relinquishment of custodial responsibilities and the new schedule. With the new status quo in place, she will have given you an excellent opening to pursue a custodial change, because actions speak louder than words. I hope that this answers your question.

  19. Diane says:

    My ex and I have joint legal custody, I’m the non-custodial parent and my ex has primary physical custody. I suspect that my ex (custodial parent) is planning to move out of state. I’m very active in my children’s lives with every other weekend visits, two days a week visits, week on-week off summer visits, split major holidays. I talk to my children everyday that they are not in my care. I attend school functions, class trip, and parent-teacher conferences. I do all the driving when it’s my visitation. My ex only has to give me a 30 day notice before the move. What can I do to prevent this move from happening.

  20. Julia Jankowski says:

    @Diane, once you receive the required 30 day notice, you can file a Petition to Enjoin Relocation. You can also file a corresponding Motion to Modify Custody/Visitation. These filings together may be able to prevent your ex from relocating with the children and/or modify the current arrangement to make your visitation more feasible or to allow you to become the primary custodian. Ultimately, a judge will determine what is in your children’s best interest, and you should certainly highlight your involvement in your children’s lives.

  21. Confused parent says:

    My ex-wife was the custodial parent when we divorced. I relocated to NC, and she had all of my contact information, which never changed. Since then I had lost contact with my child due to her mother’s excessive moving. Last year, my ex-wife’s parents (who are in their 70’s) contacted me wanting to adopt my child, because apparently 4yrs earlier my ex dropped her off and left. All this time, I had not been able to find her and they knew how to find me. Now they want me to terminate my rights, which I am fighting. I want to know, who’s responsibility was it for my child to maintain contact with me? I had been searching up until I received the letter to find her but never could. My ex had also been collecting child support for my child, which was not residing with her and was not giving it to her parents. Shouldn’t someone have contacted me when all this happened? Shouldn’t my ex let me know that she was moving or was no longer able to care for my child?

  22. Julia Jankowski says:

    @Confused parent, there are a lot of details that I would need to give you a full answer. For example, did you have visitation rights when you moved to North Carolina, and did you exercise them? Regardless, it sounds like you haven’t seen or been in contact with your children for four years, and both you and your ex-wife are responsible for the loss of contact. When you initially lost contact, and your ex-wife did not properly notify you of the move (as she was court-obligated to do), you could have reopened your case and moved to show cause as to why your ex-wife did not update her address information. Part of that process could have included a subpoena of her parents to provide her address or a private investigation if she still could not be found. You also could have requested that the court stop the child support until a determination of her address was made. Once you found her and realized that she had placed the children in her parents’ custody, you could have moved to modify custody/visitation.

    In other words, your ex-wife should have contacted you regarding her new address. But once you realized that she failed to provide that information, it became your responsibility to demand it so that you could maintain contact with your children. I hope this helps.

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