Relocation and Virginia Child Custody

Posted on Feb 28, 2022 by Katie Carter

There are about a million different reasons you might want to relocate with your children – one of which being, of course, living in an entirely different zip code from your child’s father. It’s a very reasonable thing to want to do, but, under Virginia child custody laws, it might prove more difficult than you imagine.

Here in Hampton Roads, we have a heavy concentration of military families. They tend to relocate all the time – with more or less difficulty, depending on the specifics of their circumstances. I’ve found that, sometimes, even in cases where the military servicemember (even if she’s the mom) had no choice about her relocation and there was absolutely nothing she could do about it, the relocating parent loses custody.

It’s not always so black and white, of course. I’ve seen moms win relocation cases, too, it’s just that it’s not at all easy to do – and, even if you DO win, there are significant logistical challenges. (Like, who pays for travel? If a plane is required, do they go unaccompanied? Do you plan to give the non-custodial parent almost all of the holiday breaks plus a big chunk of the summer? And so on.)

Relocation is always going to be a tough case to win, because the court’s default belief, according to the ‘best interests of the child’ factors that the statute requires judges use when making decisions in custody and visitation cases, is that having access to both mom and dad is what’s in a child’s best interests. Furthermore, the law was recently updated to say that the court must consider all sorts of custody arrangements (primary physical custody, shared physical custody, and split physical custody) equally before rendering a decision.

Now, that doesn’t mean that the court has to look at shared custody first – but, honestly, that may be the actual practical implication of that rule, as put into practice by Virginia juvenile and circuit court judges. That doesn’t mean that a 50/50 split is implied or preferred necessarily but suffice it to say that we see it a lot more often now than we ever have before – so do with that what you will.

Can I relocate and win custody?

It’s certainly possible that you could relocate and win custody, but it’s not probable. A lot will always depend on the specific circumstances of your case, so you’ll definitely want to talk one on one with a lawyer about it before making a big decision that you might come to regret.

When it comes to relocation, is it better to ask for forgiveness than permission?

Sometimes. But in other cases, it’s really dangerous.

Let me explain what I mean here. By asking whether it’s easier to ask for forgiveness than permission, you’re basically suggesting that you just do what you want – basically, move with the child – and hope it all works out. As long as your child’s father doesn’t do anything, like file emergency petitions, it could all work out fine. You and your child could go live in that other place for 6+ months and establish residency there, and then that court would have jurisdiction over future custody and visitation disputes.

But what if he does make a fuss? What if he does file emergency petitions? The judge could have an ex parte hearing – meaning, a hearing where only he and his lawyer are present – and order you to return the children to Virginia. I’ve actually heard of a local judge calling a woman on her phone and leaving a voicemail telling her that she was ordered to return the children to the Commonwealth of Virginia.

Needless to say, this could result in the judge not thinking too kindly of you. It’s a gamble, and it’s one that can really, really ruin your chances – not just of being allowed to relocate, but of being awarded custody at all.

Does it matter if I don’t have a choice about my relocation?

Probably. Something akin to military orders is a good fact, if you have to relocate. But just saying “there’s no opportunities here, I need to go somewhere else to even get a job” is probably not going to be enough. Maybe if you work in a highly specialized field there’d be an argument to make, but the judge is still going to consider the fact that your child and your child’s father are here to be pretty important. Couldn’t you just find a job doing something else? Don’t you think that relationship is important? After all, you were living here BEFORE this custody case, right? What has changed, except your relationship status? It’s a big hurdle to clear.

What if I try to win relocation, and, if I don’t, I just stay put?

Ooof. That’s some shenanigan. And I think it’s probably pretty likely to backfire. No judge will really appreciate that.

If you go into court saying, basically, “either you let me go, or I’ll stay” the judge will deny your relocation – right? Because, obviously, you can stay here, the child can have access to both parents, and that’s in the child’s best interests.

If you go into court and you DON’T say that, and you lose – well, you’ve lost custody. You could appeal, or maybe re-petition after a material change in circumstances has occurred, but by then dad has already won custody. I’ve found that judges really aren’t that sympathetic when people try to play games like this to basically beat the system.

You should definitely be aware of how difficult a relocation case is to win before you make any big decisions about your job or career. Even if you’re in the military and preparing for new orders, you’ll probably find it’s better and easier to keep custody if you stay local, to whatever extent possible. If I were you, I’d always try to stay local if I could, rather than risk going through a prolonged litigated custody case with a possible relocation. That’s not to say that you always have a choice, but sometimes you do.

It’s definitely worth having a conversation with a lawyer about your unique case. I’ve raised a lot of concerns here, but the reality is that relocation – like so many things related to custody and visitation – is incredibly fact-specific. You should have an opportunity to raise your concerns to an attorney and to talk about the potential advantages and disadvantages of any course of action.

For more information, or to schedule an initial consultation, give our office a call at 757-425-5200.