Relocation in Virginia: Are You Going to Move Anyway?

Posted on Jun 16, 2021 by Katie Carter

Relocation cases are often a double edged sword. You’re (excuse my language) damned if you do and damned if you don’t.

No matter how you slice it, it’s hard to win a relocation. We’ve talked about these cases every which way from Sunday, it seems like to me, but there are always nuances or different ways of looking at a question that can help give perspective and clarity to the decisions you’re facing.

And what’s what it’s all about, isn’t it? It’s not so much what choices you ultimately end up making, it’s the information that you have beforehand – so, ideally, you’re able to make the best decision for you, and face up to the unique advantages and disadvantages of the situation.

I’ll say, right off the bat: I can completely understand why you’d want to move. In a lot of cases, families find themselves in a place for one reason or another but, once the relationship doesn’t work out, the decision to stay where you are no longer makes sense. Whether you could pursue your own unique educational or professional objectives better somewhere else, whether you have a stronger support network elsewhere, or whether there’s some other reason entirely, it’s natural to want to make a change.

When it comes to relocation, one of the first (and most basic) question is the sharpest part of the double edged sword.

Are you going to move anyway, regardless of what happens in your custody and visitation case?

The court can’t stop you from moving. You’re free to go, whenever and wherever you’d like. It’s just that, if you want to take the children along, you’ll have to play by the court’s rules. I’m sure that doesn’t bring you much joy to hear, but that’s the way it works.
So, the question begs to be answered. Will you go alone, if the judge doesn’t allow you to take the kids? Or would you choose not to go, if that were the case?

Here’s why it’s a double edged sword.

I’m moving no matter what the judge says.

If you say, ‘I’m moving no matter what,’ you’re in for a nasty relocation case. Because, then, the judge has to look at all of the best interests of the child factors, assess the independent benefit to the child, and ultimately make a decision about what might be best.
In this type of case, unlike “normal” custody and visitation cases where shared physical custody seems to be becoming the norm, there are winners and there are losers. It’s time consuming and expensive, and you could lose. Will you lose? I have absolutely no idea, as that’s a really unique, personal, and complicated question that depends entirely on the facts involved in your case.

Can you live with the possibility of losing?

If I can’t move with the kids, I’m staying.

This camp is the one that most moms fall into. Most moms won’t relocate without the kids. (And, mostly, the ones who say they will are the ones who are SO CONVINCED that the judge will see it their way that they don’t appreciate the risk – more on this in a minute.)

So, once you say that, once you admit to the judge that without your children, you’ll stay put – what incentive does the judge have to hear you out? At that point, the judge hears, “If I don’t allow mom to relocate, the family will stay together” which, in many judge’s views, is in the best interests of the child.

It would be tough to say that you won’t go without your children and also to make a real, convincing argument to the judge about the children’s best interests.

What if I say I’ll go anyway and then, if I lose, I change my mind and stay anyway?

Most of the moms who tell me that they’ll go anyway don’t really mean it. These moms are just convinced of the rightness of their position. Sometimes they’re right, sometimes they’re not.

These cases can get super complicated. What if you need to move, to be near your new husband, who is in the Navy and stationed somewhere else and you’re pregnant with his kid now, too? Eeeks – well, let’s just say, it’s never easy! It’s definitely not a guarantee just because your new husband has orders that send him somewhere else! In fact, it’s never a guarantee. It’s an uphill battle, no matter what.

There’s actually a case on point that follows this question. Mom said she was going, no matter what. Mom lost, and Dad won custody. Mom changed her mind, and wouldn’t leave without the kids. The judge refused to change custody.

So, all that to say, it’s a risky little game. Maybe your judge wouldn’t be of the same mind as the judge in the case, but probably opposing counsel will know about it and cite it. And it DOES look a little manipulative, right? You say you’re going no matter what because to say the opposite (that you won’t go without the kids) really pretty fundamentally undermines your case anyway – but then you do a switcheroo to minimize the risk to yourself.

In the law, there’s strategic thinking that makes you clever, and there’s strategic thinking that makes it look like you’re willing to use the children as pawns to get what you want (which judges and Guardians ad litem frown on). Unfortunately, I think, this kind of plan falls into the latter category.

Relocation is hard. Lots of things you’ll have to consider – like this all-important question – put you in a terrible Catch-22. It’s important to do some thinking to really come up with a plan for how to address the underlying problems, an issue we’ll talk more about in our upcoming article on Friday. Stay tuned!

For more information, or to request a copy of one of our custody books for Virginia moms, give our office a call at 757-425-5200.