Moving Away With the Children: Virginia Child Custody Issues

Posted on Mar 20, 2019 by Katie Carter

Over time, the law changes and evolves. I see trends – even just in the 8 or so years that I’ve been practicing – come and go. It’s funny how that can happen, but, in custody cases, so much is left up to the judge’s discretion. These things really can be different year over year, and there can be seismic shifts in judge’s viewpoints. And not necessarily in just one court, either; sometimes, it seems like all the judges get a particular memo at the same time, while the rest of us try to scramble to figure out a new way of judicial thinking and respond accordingly.

One of the ways that I’ve seen judicial thinking seem to change over time is where it relates to moving away with the children. It happens a lot; it’s a pretty common issue, and, if you’re reading this article, I’m sure you can imagine why. When things don’t work out with your child’s father, some changes necessarily take place. If you’re the lesser earning partner, you may feel compelled to move somewhere that you have more financial support, especially if you can no longer remain in the home you and your child’s father formerly shared. Usually, we find that women move in with their parents when they’re down and out. If your parents live geographically far away, or in another state, that can pose a real issue.

There are a number of interrelated issues when you move away with the children, and you should be aware of how everything plays together before you choose to move.

Moving away: the way it used to be

When I first started practicing, we used to say that it was often easier to ask for forgiveness than permission when it comes to relocation. Relocation cases have always been super hard to win anyway, so often if you asked the court to be able to move to another state, the judge would’ve said no, anyway. Why? Well, the best interests of the child factors reign supreme in custody cases, and one of the most important themes of the best interests factors is that the children benefit from having both parents. If you move somewhere that both parents can’t be involved to the same extent as they currently are, well, that’s a problem for many judges.

Relocation standards in Virginia courts

Today, as well as way back when, a case is only a relocation case if one party moves (or asks to move) AFTER an initial determination has been made. If there’s no custody order in your case before you go, your move won’t be considered a relocation. (That’s part of why we used to say that forgiveness was easier than permission, too; you wouldn’t have to meet the extra high standard to allow a relocation.) This part is still the case today. If you move BEFORE that initial determination, it’s not a relocation.

What happens these days when you move away with the children?

But what I see happen more and more often these days is that, as soon as mom relocates, dad files an emergency petition for custody. It’s hard to get an emergency petition granted, but judges seem to suddenly really, really care when one parent moves out of state. (It used to be that emergency hearings were reserved more for life threatening types of situations.) So, what can happen? Well, if dad files a petition for an emergency hearing, the judge can order that you return to Virginia with the children.

In fact, I heard about a case like this yesterday. The mom moved out of state out of necessity. She had never been married to the child’s father. She had even supported him through a nasty five year divorce! Suddenly, he tells her she needs to get out. So she does – she moves home, to her parent’s house, in Maryland. She gets a new job, enrolls the kids in school, and makes sure that visitation can still take place.

Dad files an emergency petition for custody. Mom wasn’t served with notice of the hearing, and had no idea it was taking place. The day before, the case wasn’t even on the court’s docket; she checked. (She was concerned because dad was suddenly radio silent, so she feared he had something nasty under his sleeve.)

The next day, she received a voicemail from a judge in a local juvenile and domestic relations district court, telling her that she was ordered to return the children to Virginia.

Can the judge DO that? Well, no, I don’t think so – mom didn’t have notice of the hearing, or an attempt to appear and defend herself.   (That’s kind of a big deal; it’s that whole “due process” thing you read about in the Constitution.)  Except, of course, for the obvious fact that it actually DID happen. It’s an order of the court!

Maybe it can be un-done. It’s too soon to tell. But now, the tenor of the case has changed. It’s less an opportunity to equally present evidence; it’s about damage control. Dad has already gotten into court and made a first impression on the judge – him as an aggrieved parent, and her as a guilty parent determined to take the children away from him. I daresay that her attempts to facilitate visitation were not discussed at the emergency hearing. Without her present, he had full opportunity to say whatever he liked.

That’s a really scary situation, but it’s something you should be aware of. Moving is always, always risky, but, of course, if you ask the court to be allowed to move, you may very well be told no.

Relocation cases are some of the most difficult cases we handle. It’s important to get specific, up to date, Virginia information BEFORE you leave the state. Talk to an attorney and come up with a plan of action. After all, it’s better to act offensively than defensively, and having a specific, targeted plan is a part of that.

In this case, mom was advised to wait to move the children until after the school year, so it wouldn’t be an issue, like this, of school registrations ping ponging back and forth between different states (which, as you can imagine, is almost certainly NOT in a child’s best interests). Mom felt that the situation at home was too bad for the children to continue to endure it until then – and maybe she’s right – but there’s no question that, at this point, the case is a million times more difficult (and certainly more expensive).

Working with an attorney is critical. Following attorney advice is even more important. If you’re considering relocation, please, please, please talk to an attorney first and come up with a plan of action. For more information or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.