Just because you and your child’s father share a child (or multiple children) does not mean that you agree about where you should live as you raise them. Divorce often has an immediate impact on a family unit in the sense that one (or both) or the child(ren)’s biological parents would prefer to live somewhere else – whether to be closer to a support network, for increased economic opportunities, or just to get away from a place that has become associated with bad memories. Sometimes, though, it’s not part of a larger divorce; childbirth alone can have an impact on where and with whom a woman wants to live, and she may find that where her child’s father lives is no longer an ideal situation for her. (Or maybe it never was, and the introduction of the child to their lives proved that to her!)
It’s also sometimes a matter of work, especially in military families. Just because you happen to find yourself stationed in Virginia doesn’t mean you want to remain here; it may also not mean that the orders that you’re operating under are going to last for any specific period of time. The military is famous for relocating its members often and, sometimes, without a whole lot of warning to the families involved. Though preferences are often ranked, its also possible that a military service member will get orders that don’t rank anywhere on his or her list of preferences, further compounding the issue.
If you have a child in common, though, and you live in Virginia, moving may not be as easy as you think.
What is relocation?
Relocation is a term we use to describe a case where one parent wants to move away from where they have previously lived with their child and their child’s other parent. It is not relocation when the parents have always lived in separate physical places and it’s also probably not relocation to move just a short distance.
A ‘short’ distance, though, doesn’t have a specific definition. It’s certainly not limited to a number of miles or even necessarily the boundaries of a particular state. As anyone who lives in the Hampton Roads area of Virginia knows, the matter of just five or ten miles – between Ocean View in Norfolk and Phoebus in Hampton – can make a tremendous difference in terms of accessibility because of the complications of the bridge tunnel. Likewise, there are places in Chesapeake that are geographically much further from each other than areas of North Carolina. Sometimes, a state’s boundary is just a hop, skip, and a jump away – and even moving within the same city or county isn’t anywhere near as easy to navigate.
How does the court judge whether a relocation can or should take place?
When it comes to relocation, it is generally better to ask permission than it is to ask for forgiveness after you’ve gone – and risk the judge, Guardian ad litem, and other key professionals hating you forever (or ordering you to return, sometimes on an emergency and/or ex parte basis).
Asking permission often isn’t easy, either, but we differentiate in relocation cases between cases where there has NOT been a previous determination made (so it is an initial determination) and modifications (cases where they has been a previous determination made and this is seeking to change that previous court order).
In Initial Determinations, Relocation is Easier!
If yours is an initial determination – so custody and visitation have never before been decided – then you’ll have an easier road ahead of you than someone seeking a modification. Don’t be fooled, though; relocation is tough business.
In the event that you’re determining relocation as part of an initial determination, you will only have to make an argument based on the ‘best interests’ of the child. The best interests can mean a lot of things – after all, there are ten factors – but it is the relocating parent’s burden (meaning, the parent who wishes to move) to make an argument that supports that the move will serve the child’s best interests. You’ll – assuming you are the one who wants to move – have to make a STRONG argument, because the presumption working against you is that having close and continuing contact with both parents is a tremendous benefit to the child.
Your child’s father – assuming he’s the one who wants to keep you here – will have to argue against whatever case you’ve made. Remember, relocation – like any other legal argument – is always down to the specific facts involved in each case, and there’s also the possibility to persuade the court that whatever scenario you desire is the one that would be best for the child. Whatever side you’re on, there’s going to be an opportunity to convince the court that moving – or staying put – will be best for THIS child (or these children) under these specific circumstances.
After an Initial Determination is Made, Relocation Becomes Harder!
After an initial determination has been made, relocation cases are harder to argue – mostly because we have a basic status quo working against us. Now, not only do you have to argue that relocation is in the child’s best interests, but you’ll have to argue that the relocation has an ‘independent benefit’ to the child. What that mostly means is that you’ll have to demonstrate how good this will be for the child – so good, in fact, that close contact with her other parent pales in comparison, which is a tough burden – but you’ll also have to describe how you plan to facilitate contact moving forward.
You should go into court – again, assuming that you are the parent who wants to relocate – prepared to show the court how you will prioritize this relationship and the specific plan that you have to make sure that the child’s relationship with dad doesn’t suffer.
What would an ideal parenting plan look like? How much parenting time would he have? How would travel work? How do we prioritize other important relationships of the child – like a grandmother or other step or half siblings? What costs are associated with this move and who will cover them? How will you handle holidays and summers?
There are a lot of variables to consider – and every case (just like every family) – is different. Relocation is tough to win, but some moms do win it! For more information, to request a consultation, or to get a copy of our free report on relocation, visit our website at hoflaw.com or give us a call at 757-425-5200.