Can I relocate out of state with my child?

Posted on May 2, 2022 by Katie Carter


In family law, there are things that are pretty well established in black and white. And there are lots of other areas that offer various shades of gray. Most areas, in fact, are gray and are ultimately heavily dependent on the specific facts involved. It’s what makes answering just a ‘simple’ legal question so difficult!

In a lot of cases, more context is needed to answer any question, and the question today – can I relocate out of state with my child? – is a great example of just one of those questions.

The simple answer is that, if you don’t have a custody order with specific parenting time that you are violating, yes, you can technically move out of state with your child. Or, at least, when I say you ‘can’, I mean that you’re not violating any laws or technically committing ‘parental kidnapping’ by doing so.
Does that mean you can do so easily or without consequence? No. Absolutely not.

If there is a custody order or agreement in your case

If there’s an order or agreement in your case, you’ll have to follow that order or agreement. You may find that, depending on what your specific custodial arrangement looks like, you’re not even really able to move to a new city, let alone a different state.

In many cases, moving – even a relatively short distance – can cause a problem to the established schedule. If you move and it upsets the order or agreement, your child’s father could file and ask for a modification. It’s possible he could even file a show cause against you as well, and there could be sanctions.

But that’s an easy answer. You can’t move if doing so would violate an already-existing agreement or order. In state or out of state, you don’t want to disrupt the order. If you DO want to move, you’ll have to negotiate a new agreement or litigate and get a new order in place. But, be forewarned: if you’re determined to go and it would change custody and visitation, you could find yourself with less parenting time than you currently enjoy, especially if the judge feels that your move doesn’t suit the ‘best interests of the child’.

If there is not a custody order or agreement in your case

If there is not a custody order or agreement in your case, technically you can move. There’s nothing restricting you. It’s not parental kidnapping to take your children with you.

Technically, too, HE could move with the children, and, likewise, he would not have committed a criminal act or be guilty of parental kidnapping. But, when you think about it and the shoe is on the other foot, how does that make YOU feel?

Here’s where the facts start to come in.

Is he paying child support? Technically, that doesn’t really matter, because the courts don’t think that paying (or not paying) child support doesn’t have any bearing on visitation or parenting time. Does he regularly see the child? Do you have an ‘unofficial’ schedule? Is he a total deadbeat? Where does he live?
All of these things will ultimately impact whether you will run into issues later. The first issue I see is whether dad is going to freak out about your having moved the kids. Will he file emergency petitions? (Another fact related question: How much money does he – or his family – have to support custody litigation? Is it likely he can afford to file an emergency petition?) If he does, it’s very possible that the court will have a hearing – possibly even ex parte (meaning, without you and your attorney being present) and order you back to the state.

I’ve even heard of judges calling moms on their cell phones in open court and ordering mom to return the children to the Commonwealth of Virginia! Yikes. And, trust me when I say, judges often have long memories, and don’t look too appreciatively on that type of behavior.

But, if your child’s father isn’t paying support, hasn’t expressed an interest, lives out of state himself, rarely sees the children, (if ever), and doesn’t have much in the way of financial resources, then it may be a slightly different scenario. It’s not that the laws are different, but the facts support you doing your own thing a lot more if he’s already not really involved with the child than if, on the other hand, he’s seeing the child regularly.

If you get the child to the new state and you live there for a period of six months, then that new state will take over jurisdiction – so that’s kind of the benchmark. Do you think you can get six months down the line without him interfering? If so, then you may get away with it. If not, well, it’s kind of a risky gamble that could ultimately result in your losing custody.

How much risk are you comfortable with? Are you of the opinion that it is better to ask for forgiveness than permission? Those are facts that might influence your choices, too!

I generally don’t advise that my clients just move and hope for the best, but it’s possible that the facts in your case support your doing this. In most situations, it’s a good idea to at least talk to a lawyer about your case and the specific facts involved before you make any big decisions with potentially devastating consequences. After all, custody and visitation is hanging in the balance.

For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.