I talked about relocation the other day, but I focused on relocation from mom’s perspective – as in, she is the one who wants to move. But what happens when it’s dad who wants to relocate, and it’s mom who is opposing it? It’s a good question; let’s talk about it.
He wants to move and take the kids, so I’m totally panicking. What next?
Well, we talked about it the other day, but it’s far from a given – even if he’s the primary parent – that he’ll be able to relocate with the kids. There are a lot of fact-specific things the court will consider, among them whether there’s an existing court order or agreement in place, what both parents’ relationship(s) with the kids look like, whether there is an independent benefit to the child(ren) associated with the move, how far the move is, and how the parent(s) will accommodate custody from a distance.
It’s hard to talk specifics without knowing specifics, so suffice it to say that I’d suggest you talk to an attorney as soon as possible to get a sense of how the facts will work together in your case.
Relocation cases are tough because they’re typically all-or-nothing. You can’t say, “Oh, let me relocate with the kids or I’ll just stay put,” because the court would say, “well, then, you should stay put,” because, in that scenario, the child retains as much time as possible with both parents. You pretty much have to decide whether to stay or go. Risk it for the biscuit – or not.
And it’s especially hard when that decision is being made for you. You don’t have any control about whether he stays or goes, but you risk losing custody because of it. Not necessarily because of anything you’ve done wrong, but because – in a relocation case – the court has to pick one or the other.
I would say it’s generally harder to be able to leave; there’s a bit of preferential treatment involved with being the stable one who isn’t moving, especially if the child(ren)’s daily lives are not as disrupted. Will they keep their same school? Same home? Same activities and friends? Those kinds of things are all factors in favor of the child staying put, especially if the child is already well adjusted. A new school, new friends, new activities, and a new home away from one stable, well-adjusted, and otherwise involved parent … well, it’s a lot.
Of course, if you’re changing things up – moving, remarrying, etc – at the same time, that weight in your favor goes away. If, either way, the kids are moving schools, you technically being in Virginia still provides less of an anchor than it would otherwise have done. In any case, it’s incredibly fact specific, and no two cases are ever just alike.
What factors must the court consider?
Virginia is not a mandatory 50/50 state; we use the “best interests of the child” factors to make custody decisions. The intent here is for child custody and visitation decisions to be child-focused, rather than parent-focused.
In addition to the ten best interests of the child factors, the court has to consider whether there is an independent benefit to the child for moving. It’s not just, “well, will dad be more economically secure?” or even “is his job requiring that he move?” It’s a question of how the move will independently, specifically benefit the child. That’s a tough question to answer because most reasons for moving – jobs, family support, or remarriages – are to the adult’s benefit, rather than the child’s.
But the court wants to see benefits to the child; after all, that’s the whole point of “best interests of the child” anyway.
What can I do to prevent this?
I think your main argument at this point is how much the move would impact your custodial relationship and how that’s absolutely not in the child’s best interests. Talk about how involved you are and how that would change. Dispute his independent benefit. Research the school systems and compare them. Talk about the therapies, doctors, activities, and organizations that the child is involved with and how that would necessarily change. Focus on the impact to the child(ren), rather than the impact to you personally.
Talk, too, about what you’d do instead. How, if dad moves and you keep custody, you’d facilitate contact. How you’d make sure the kids maintained a strong relationship with dad despite the distance and difficulty. Be the one who considers the impact on the kids and talk about how important dad’s presence is – and what, exactly, you’ll do to make sure the impact is negligible.
Can I move to follow him?
It doesn’t happen often, but I do hear this. If he goes and he wins custody, can I follow them? Sure. It’s a free country. Once your kids are gone, you can go, too. But I probably wouldn’t tell the court that you’ll do this if the court gives him custody – because, again, I think the likelihood is that the court will do whatever it takes to keep both parents in the child(ren)’s lives if that’s a possibility.
It’s also okay if you’re on the opposite end; you’ll never move to follow him. Keep in mind that custody and visitation can look pretty different from a distance, with the non or lesser custodial parent receiving larger chunks of time. Maybe you manage to get all of the holidays and the summer. Focus on what a palatable solution would look like for you and work to achieve it, even if you don’t “win” custody.
After all, the winning at the end of the day isn’t just in who has the most time, it’s in who the kids develop the most meaningful relationships with over the course of their entire lives.
I definitely recommend you read this blog in tandem with Part 1, and circle back to our website for more information or to schedule a consultation if you still have questions.