I got a new job – can I move with the kids without a custody order?

Posted on Oct 27, 2021 by Katie Carter

In any given divorce and custody case, there are a million issues that can come up. Relocation is often a big one.

I hear all sorts of reasons, but it usually comes down to being far from home and without a whole lot of support. Though a lot of people get married and raise children somewhere near where they grew up (yours truly included), many others find themselves somewhere entirely different. It happens a lot for military families; you may have made the move here to support his career, but now that the relationship has gone south, you want to live somewhere else. It can happen for civilian families, too. Many of us move for their spouse’s career.

But going through a divorce and finding yourself soon to be single and without a network of family support is a daunting prospect. You’re only human if you’re wondering if there’s an alternative, or if there’s a way to get yourself a little closer to home.

To give you a bit of general advice, though, I’d say this:

It’s NEVER a good idea to make big decisions without consulting with a family law attorney first!

I find that women often seem to feel like it’s better to ask forgiveness than permission, so they do something drastic – like finding a new job a little closer to home. They accept the position, enroll the children in a new school, and schedule a moving truck.

Then, they ask me. Or, worse, they go – and find out that it’s not just that easy.

It’s never as simple as just having a job lined up, or needing your mom nearby so she can provide the extra childcare you need.

In Virginia, custody cases come down to a few basic principles that you should be aware of before you make any big decisions. For one thing, cases are centered on the best interests of the child factors.

For another, you should keep in mind that the general attitude of judges, Guardians ad litem, attorneys and others involved in the custody process, is that it’s not about mom’s rights or dad’s rights – it all comes down to the CHILD’S right to have a relationship with both parents, to the greatest extent possible.

Is it better to ask for forgiveness than permission? If I relocate, what can the court do about it?

Don’t tempt the evil eye! Ah – that question gives me such anxiety.

The truth is, the court can still do a lot. A new state doesn’t immediately take over jurisdiction when a child crosses into their state’s lines. In most places, it takes a full 6 months of residency. So, while you’re working away towards that 6 month requirement, your old home state still has jurisdiction.

Your soon-to-be ex could file emergency petitions in Virginia. Even though we’re facing pretty serious COVID-19 related backups, emergency petitions get priority in terms of scheduling, so it’s possible he could get into court really fast. He could have a hearing – on his own, without you present – and present the issues to the judge. The judge could then ORDER YOU TO RETURN THE CHILDREN TO THE STATE.

The judge can’t order you to return, but he or she can order that the children return. And, by the time you/they do return, the judge will likely have formed a pretty negative opinion of you.

Also, by that point, you’ve escalated tensions, caused your case to become contested, and dramatically increased the probability that your case will be both expensive and time consuming to resolve. (Not to mention, of course, the increased costs of moving…twice.)

Is it possible that you could go, he wouldn’t file an emergency petition, and all would be well that ends well? Yes.

It is also possible that it could go down just like I’ve described here? Also yes.

In fact, one of the attorneys in my office represented a client in a similar case where, at the emergency hearing, the judge called the woman on her cell phone and left a voicemail telling her about the case, her decision, and the deadline by which time the woman needed to have the children returned to the state.

What are the alternatives? I really need to relocate!

You want my advice? I’d say, don’t put the cart before the horse. Don’t run the risk of the case turning nasty because you’ve done a runner. It won’t endear you to any judge or GAL on your case, (almost) no matter how good your reasons. You’re creating an uphill battle for yourself.

Ideally, if you really wanted to relocate, you’d negotiate a custody agreement where he agreed to allow you to relocate.  But that’s not to say that he’ll agree, even if you have a really, really, really good reason.  It may be nefarious – an attempt to control you after your relationship is over – or it may just be an attempt to stay as a permanent presence in the child’s life. In either case, it may not be something that he’ll readily agree to.

Relocation is hard. You have to consider the implications it has on his ability to be the kind of parent he wants to be. Every other weekend is no longer a possibility. If you’re going to make a suggestion like this, I think you’d be wise to consider what his parenting time might look like, and approach him with some solutions that might feel more workable to him. It’s not a guarantee that he’ll agree, but it’s at least a shot.

Otherwise, you’ll have to litigate. It’s hard to win relocation, so I don’t want to make you think that the judge will just see things your way. You have to remember that your child has a right to his or her dad as well, and that this right weighs strongly in the eyes of the court.

It’s worth a shot, if you’re desperate to move. But it’s also never a guarantee.

Still, what’s most important is not making the kind of big mistake that results in a change in custody. After all, it’s probably better to have custody (whether primary physical or even shared) of your children living in Virginia, than live somewhere else but NOT have primary physical or shared custody, right?
For more information, to request a copy of our custody book, or to get more information about an initial consultation with one of our experienced custody lawyers, give our office a call at 757-425-5200.