Relocation is one of the trickiest areas of child custody litigation in part because there are no hard and fast answers. Whether you and your child’s father were married and are not separated and/or divorcing, or whether you were unmarried but share children in common, you will find that your ability to move wherever you want is severely limited.
Yes – that’s even true if you’re remarried and your new partner is, say, in the military and facing a permanent change of duty station.
It can get tricky fast, so let’s talk about it.
How are custody cases decided?
In Virginia – and everywhere else – there are really only two ways that cases get decided. Either the parties (in this case, the coparents) reach an agreement between themselves or, alternatively, they petition the court and are bound by the decision rendered by the judge.
In Virginia, these decisions are made, where custody and visitation is concerned, at the juvenile court level. Divorce actions are heard in circuit court, so if your relocation issue is part of a larger divorce action, you will start in circuit court.
Juvenile court is technically a lower court, so it has the extra benefit (or burden, depending on which side of the case you’re on) of being automatically appealable. That means that, if you litigate your case at the juvenile court level and you get a result you don’t like, you can automatically appeal it to the circuit court for a trial de novo, meaning that it will be brand new and nothing from the lower court will come up.
Well, I say nothing will come up, but it is probable that, if a Guardian ad litem was appointed, he or she will follow your case up to the circuit court.
What qualifies as a relocation?
This is the million dollar question! At what point are you just moving and at what point are you ‘relocating’?
In the early stages of your case, before a custody and visitation agreement or court order is entered, you have much more freedom to move. Of course, that doesn’t mean that you can go anywhere or do anything you like; I’ve seen cases where one party up and decides to move out of state and then the child’s other parent files an emergency petition, after which the judge orders that the children must be returned to the state.
BEFORE you move, it’s always a good idea to talk to a family law attorney about the specifics of your case so you can be sure you won’t create a bigger problem.
If you successfully move, though, and then your case begins, your move won’t count as a relocation in the same way. You won’t have to ask permission because the move has already occurred.
Afterwards, though, especially if you have a custody and visitation agreement or court order already in place and circumstances change, you’d have to ask the court to be allowed to relocate with the children.
If the place where you’re moving is one where you can continue to follow your current parenting plan, then you’re probably okay. Usually, somewhere in the neighborhood of 30-40 minutes is acceptable and not necessarily considered a relocation – though it is wise if you consider the ramifications of such a move.
If the kids are in school 30 or 40 minutes away and you move (especially if you aren’t planning on changing their school district, too), you may have to do the back and forth drive in the morning and the afternoon on your parenting time – which may prove to be difficult. You’ll want to consider how this impacts pick up and drop off and the additional time that the children will spend in the car. How will it impact your work schedule, too? There are a lot of variables and sometimes even a fairly small move can have a big impact on the day-to-day.
How can the court tell me where I can and can’t move?
The court can’t tell you that you can’t move. As far as the court is concerned, you can go wherever you want. The same goes for your child’s father. You are free to move whenever and wherever you like.
The big catch is that, depending on the circumstances, the kids can’t necessarily go with you. Unless and until the children turn 18 and become legal adults, they will be subject to the jurisdiction of whatever family court structure exists in your state. In Virginia, we don’t technically have anything called a ‘family court’. We call it “Juvenile and Domestic Relations District Court,” or juvenile court or JDR or even J&D – but, still, it’s probably fine to call it family court. (Colloquially, I think this is most common, simplest, and it makes a whole lot of sense, even though we don’t formally call it that here; anyone would know exactly what you meant.)
If you already have a custody agreement or court order in place, this probably already specifies which court will hear issues related to custody and visitation. If you don’t, then the family court in the state where the children have resided for at least the last six months will be the place where your custody case would be heard.
How do family courts – or juvenile court, whatever you want to call it – decide custody and visitation?
Decisions related to custody and visitation are based on the ‘best interests of the child.’ In the case of a relocation, the same standard applies. Is the move in the best interests of the CHILD (or children) in question?
In a relocation case, you’re going to have to add the extra ‘independent benefit’ standard to argue your point. Basically, you’ll have to say that moving, especially if it is far enough away from your child’s other parent that he or she can’t maintain their current schedule for parenting time, is not just to YOUR benefit (or your child’s father’s benefit), it independently benefits the child(ren) involved in the case as well.
Relocation is definitely more or less difficult depending on (1) whether you have a custody agreement in place, (2) what, specifically, that custody agreement requires, and (3) how far you intend to move.
For more information, to request a copy of our free report on relocation, or to schedule a consultation (do it BEFORE you move, k?) give our office a call at 757-425-5200 or visit our website at hoflaw.com.