Parental Kidnapping in Virginia

Posted on Aug 21, 2017 by Katie Carter

It happens semi regularly that we end up with a client who has moved with her child (or children) to another state over dad’s objection.  If dad doesn’t care, it’s not a really big deal.  If he does, though, and he files an emergency petition for custody, you could find yourself up the proverbial creek without a paddle.

Parental Kidnapping in Virginia

They’re your kids, so you can’t kidnap them, right?  I mean, the whole idea is just ludicrous isn’t it?…Except it’s not.  Just like you have a right to your kids, to be with them, to parent them—your child’s father does, too.  He may take that responsibility very seriously.  He may be a total deadbeat.  He may have indicated that he wants to START taking that responsibility on, even if he hasn’t exercised it at all before and has left all of the parenting responsibilities and decisions up to you.

Technically, there’s no such thing as parental kidnapping unless you’ve already got a custody order in place.  He has a right to take the children, just like you do—and one of you taking the children, even over the other parent’s objection or without the other parent’s knowledge, doesn’t really constitute kidnapping.  At least, no police officers are going to get involved, and no criminal charges will be filed.

That being said, though, that doesn’t mean that you have complete freedom of movement.  It doesn’t mean that you’ll be permitted to move out of state (or out of the country) with your children over dad’s objection.  If dad does nothing, you’re fine.  You can move.  And once you’ve lived in the new state (or new country) for six months (or sometimes more or less time, depending on the laws in that locality), that state would have jurisdiction over custody and visitation of your children.

After that point, your child’s father would have to come there to petition for whatever custody and visitation arrangement he wants.  The longer the child lives in one place, the stronger the child’s ties to that place.  There’s also something to be said for the argument that you can’t think a particular place is all that bad (as in, Virginia is not suitable for your child) if you allowed him/her to live there for a certain period of time.  Why is living with dad’s parents suddenly a problem, when they lived there for the previous TWO years or more?  You’ll have a difficult battle if you’ve allowed something to take place and now you take exception to it.  Besides, the kids have friends, are enrolled in school, and are involved in activities that are tied to a specific place.  All that to say that the longer the child is in a place, the stronger those ties are—and the less likely that the judge will see reason to order those ties broken.  That makes sense, right?

Emergency custody petitions

So, it also stands to reason that if you move your child away suddenly, and your child’s father files an emergency petition to have them returned, the judge would at least seriously consider it.  That’s not to say that the judge is guaranteed to order them returned to the Commonwealth, but I’d say it’s at least a very strong possibility.

The best interests of the child

Of course, having the judge order the kids returned is not the same thing as losing custody.  Not at all!  You’ll still have a trial date scheduled, at which time you’d have an opportunity to put on your experts and witnesses and get evidence introduced that demonstrates why what you’re asking for would be in the best interests of the child.

What about enrolling the children in school?

That’s all good, and you’ll get it in, but it’s beyond the scope of the emergency hearing.  At that point, the judge is just going to want to address where the children are physically residing—especially if, like right now, it’s filed right about the time school is about to start.  Obviously, a child’s school enrollment is an important issue.  If you’re trying to get them enrolled in a different school system, the judge will likely be concerned.

Imagine, from his perspective, what that might look like for the kids for just a moment. Last year, the kids were enrolled in school in Virginia.  Now, you’ve moved them away, and tried to enroll them in school somewhere else.  Say you go to trial later, and you lose custody—the kids are then returned to Virginia.  Uprooted again!

Let’s say the opposite happens.  You move the children away, and the judge orders them returned.  They go back to school where they finished out the previous year.  If, at trial, you win custody, you can enroll them in school wherever you live now—but there’s not then the risk that you’d have to uproot them again to move them back to Virginia.  That way, there’s a maximum of one move (out of Virginia schools, and into your new jurisdiction’s schools), and a minimum of one (they stay with dad, or you  move back to Virginia to avoid losing custody, and they stay in their current school).  To a judge, this seems like the most stable option for the kids, without taking any other information into account.

Relocation cases in Virginia

Relocation cases are always hard to win.  It’s hard to know exactly how to strengthen your chances of success.  Sometimes I feel like it’s better to ask forgiveness than permission, so you may as well go and try to establish the 6 month residency somewhere else, in the hopes that your child’s father will be lazy and not move things forward immediately.  There are risks with that approach—like, for example, that he’ll file for emergency custody, the judge will order the kids returned, and then the judge will hate you forever.  I’m being a little bit melodramatic, but sometimes it does seem like a judge is pretty annoyed at a parent who tries sneaky methods like this.  The last thing you want is to go into a courtroom where everyone has already made up their minds against you!   That being said, though, the other alternative is filing a petition asking the court to allow you to move—which is pretty difficult, too!  The court always looks at the best interests of the child factors to determine custody and visitation, so the judge is going to look into these ten factors to analyze whether you should be allowed to relocate with the child:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

The court will look at factors like your employability if you move, and the other family members to whom the child would be close in the new home, but, of course, it’s going to be hard for those things to override the importance of allowing dad to stay in the child’s life. I know, I know—it probably seems terribly unfair.  You need help with the child, you need better economic opportunities, you need cheaper living opportunities, whatever.  These are all things that you can’t get in Virginia, and that he’s not helping you with.  It can make things really logistically and financially difficult on a single parent—but the judge isn’t looking at what’s in the best interests of mom (or dad!).  The judge is looking specifically, exclusively, at the best interests of the child.

If you’re hoping to relocate, it’s best to get the advice you need now, so that you can make the best decisions for yourself possible over the coming days, weeks, and months.  For more information, give our office a call at (757) 425-5200.