Summertime! It is the time of year where many of our military families are going through their permanent change of station (PCS) moves, and many of our civilian families are moving before the new school year begins.
What does relocation mean for separated or divorced parents who are co-parenting a child in Virginia? The juvenile and domestic relations district courts of Virginia will examine the best interests of the child in each case by applying the statutory factors of Virginia Code Section 20-124.3; but a relocating parent has a significant burden beyond those factors.
Where there is a current court order in place, an impending relocation is always considered a material change in circumstances which allows the court to re-examine the facts of the case.
Unfortunately for the parent hoping to relocate, the current trend of the Virginia Court of Appeals in the last two to three years has been to deny relocation.
The case law in Virginia, established perhaps most notably in Carpenter v. Carpenter, 220 Va. 299, 257 S.E.2d 845 (1979), Scinaldi v. Scinaldi, 2 Va. App. 571, 372 S.E.2d 149 (1986), and Simmons v. Simmons, Va. App. 358, 229 S.E.2d 198 (1986), requires the relocating parent to prove two things in order for the court to grant a relocation request: (1) that the relocation offers some independent benefit to the child and (2) that the relocation does not substantially impair the relationship between the non-relocating parent and the child.
Independent Benefit to the Child. Many times a parent is relocating due to a new job offer or because he or she plans to (re)marry. Although both of these events may offer a benefit to the child (a greater household income, a two-parent household, etc.), they do not constitute independent benefits to the child. Virginia appellate courts have specifically distinguished between benefit to a parent and to a child; see Boisseau v. Scott, 2407-95-2,1996, Va. App., Lexis 659 (unpublished). One cannot suffice for the other.
The relocation must offer to the child a benefit that he or she can not necessarily get if the child were to remain in Virginia. Examples may include a better school system or program that would specifically cater to a particular talent or medical need of the child. Another benefit might be the presence of extended family near the new home.
No Substantial Impairment of Child’s Relationship With Non-Relocating Parent. The relocating parent must demonstrate to the court why the move does not impair the other parent’s ability to see the child according to the current order.
This burden is especially difficult to overcome for many relocating parents. The further the proposed move and the more frequent the involvement of the non-relocating parent, the more difficult it becomes. For example, if a child lives with each parent on an alternating weekly basis and and the father is relocating from Virginia to California, it is highly unlikely that he will be able to convince the court that the move would not impair the child’s relationship with the mother. However, let’s say a father has visitation with a child every other weekend and the mother is moving from Northern Virginia to Maryland. In that scenario the court may grant the relocation, because although the move may impair the current schedule, it likely does not “substantially” impair the amount of time that the father is able spend with the child.
Parents, especially custodial parents, should understand that their position is not necessarily secure simply because they had custody in the last order or have always had primary custody. The court will always examine the statutory factors and all relocation evidence without a presumption in favor of either parent.
Parents faced with the choice or requirement to relocate can greatly benefit from quality legal representation. An experienced attorney may be able to negotiate with the other party a modified visitation schedule allowing for the relocation. The modified schedule might for example allow the non-relocating parent to have significant time with the child by simply moving around the time that the parent gets. Instead of every other weekend, maybe the non-relocating parent will get the child for more uninterrupted time in the summer. Additional concerns that should be addressed are how the child will travel between the parents and which parent will assume the increased transportation costs.
If the parties are unable to negotiate an agreement, then an experienced family law attorney can give the parent seeking relocation the best chance to overcome the current trend of courts denying relocation, or give the parent opposing relocation the best chance of preventing it.
See also: Custodial Parent Relocation In Virginia