Relocation is a really tough nut to crack – at least, when mom and dad don’t agree about the relocation at the outset. I would say, personally, that I find relocation cases to be among the most difficult of any type of case because of the fact that it’s a winning or losing proposition.
So often, family law means that both people win some and both people lose some. In the best cases, you win what was already most important to you and the tradeoffs are things that were less important. In the worst cases, you feel like you’ve lost some important things. But because of the nature of divorce, you don’t walk away with nothing, it doesn’t usually feel like a total loss.
Relocation is different because it’s a yes or a no question. It also fundamentally changes the type of parenting plan that is possible in a given situation, whether you are the one relocating or the one just trying to survive it.
Will I be allowed to relocate?
Virginia is not a mandatory 50/50 state; custody cases are decided based off of the “best interests of the child”. “Best interests of the child,” from a legal standpoint, is a set of ten factors codified in the statute. Those ten factors represent all of the things the judge must consider when making a decision.
There are a number of questions we’d consider early on in the process. Is there a custody order or agreement already in place? How far away would you relocate? How much parenting time does the child’s other parent have now? What does the child stand to benefit in the relocation? What would your proposal for visitation look like if you were allowed to move? The list goes on.
Because a relocation would necessarily impact the child’s parenting time with the other parent, there are extra criteria the court must consider. Not only must the court consider whether a relocation is in the child’s best interests, the court must also consider whether there is a specific independent benefit to the child associated with the move.
The benefit should be focused on the child, not the parent. So, it isn’t a question of whether the parent has a greater support network, more economic opportunity, or has a boyfriend, fiancé, or new husband who lives elsewhere. Is there a specific, measurable independent benefit to the child? That’s a harder question to answer. And not only is there an independent benefit to the child, but is that benefit substantial enough that it outweighs the child’s interest in having as strong as possible of a relationship with their other parent? It’s a tall order.
Ultimately, these cases are decided on a case by case basis and, unfortunately, every judge is different. It could go either way, depending on the facts. I’ve been surprised by these cases many times, and I expect I will be surprised by them many times again in the future. Will you be allowed? I don’t know.
What will parenting time look like after relocation – if the relocation is granted?
Exactly what type of parenting plan will work in your situation will definitely depend on how far away you and your child’s father live. Is it a drive-able distance or will you have to fly the child(ren)? How will you accommodate the schedule and the costs? Will they go unaccompanied or will you fly with them? What is their school and/or sports schedule like? What holidays are you willing to give up? What will summers and other long vacations look like?
A lot of times, even when I see a relocation granted, I see the child’s other parent get lots of other time – all or most of the holidays, or weeks or months in the summer. That can be a tough pill to swallow (both for you and for the kids), even if you get to live most of the year in the place that you wanted to live. It’s worthwhile to spend some time considering what alternatives might look like and whether, all things considered, it’s worth it to you to balance your life in this way.
It’s a good idea to have some specific proposals, too. Don’t come to court with all the problems and none of the solutions; come with creative, engaging suggestions for how it could work, rather than expect your child’s father or the court to come up with solutions for you.
It’s not right that the court can tell me I can’t move.
Oh, yes – that’s a good point, and I want to make sure I am very, very clear about it. The court cannot tell you that you can’t move. The court can say, though, that you cannot take the kids with you. It’s a really important distinction.
If you – or your child’s father – want to move, you can. But that doesn’t mean that there’s no impact on custody or that the kids will automatically move with you, even if you’ve been the primary caregiver.
If your child’s father doesn’t agree (and, if he does, you probably want to get that agreement in writing, even if you don’t have the rest of custody and visitation sorted yet), then you’ll either have to go and face the consequences, which I usually don’t recommend, or litigate and let the court decide whether your relocation will be permitted (or not). It’s always a good idea to talk to an attorney, though, BEFORE you make any big decisions, like whether to stay or whether to go, to make sure you’ve considered the advantages and disadvantages from every possible angle.
What if I ask the court to be allowed to relocate, but I let it know that – if I can’t take the kids – I just won’t go?
I get it. But I think the court – in this instance, if this is what you said – would say you can’t relocate because, in so doing, the court ensures that the child will have both parents in one place and the ability to be coparented by both to the greatest degree possible.
The court’s like, “Okay, well, that’s easy,” because if you stay, and he stays, the kids get two parents, rather than a complicated parenting plan from across a distance. Whether it’s a couple hundred or a couple thousand (or more!) miles, the distance makes a big difference to the child’s relationship with both parents.
Unfortunately, it quickly becomes an “all or nothing” case. You go – and risk losing – or you stay.
What if I lose and then I change my mind and don’t go?
I’ve seen a case like this before – though it wasn’t one of my own! Mom ended up not going and petitioning the court for a modification, but then the judge upheld the change to the parenting plan – dad kept custody. In that case, the judge felt like she was playing games with the court. She didn’t get her way, so she changed her plan, after having represented to the court that she had to move.
It’s all super fact specific, but, no matter how you slice it, it’s a risk. Is it one worth taking? Only you can answer that.
Will you – if you’re my lawyer – tell me what to do?
Umm, no. Not to put too fine a point on it, but the choices in my client’s cases are not mine to make. You make the choices; the attorney makes the case. I can talk through the options with you, including possible advantages and disadvantages. I can try to weigh the different factors, like where your case will be decided, what judge and GAL you have, and how all of the facts of the case combine to create your unique scenario.
But I won’t tell you to move or not move. That’s a decision only you can make. Depending on what you choose, I – or whoever you hire – would be responsible for presenting it in the best possible light to the judge, but I ultimately don’t even make any of the decisions in the case.
It’s a really difficult decision to make. Will you move? Will you stay? And, of course, though I didn’t focus here on what happens if he’s the one who is planning on moving, just take the same information here and use it in reverse.
For more information or to schedule a consultation – before you decide to relocate, you really should – give our office a call at 757-425-5200 or visit our website at hoflaw.com.