Relocation in Virginia Military Custody Cases

Posted on Nov 8, 2019 by Katie Carter

We’ve talked about relocation cases in Virginia generally, and how difficult it is to “win” a relocation case in Virginia. It comes up all the time, as you can probably imagine, but it comes up especially often in military divorce cases.

When it comes to relocation, the stakes are always particularly high because suddenly custody DOES become a win or lose proposition. Whereas in a normal custody case, where mom and dad live relatively near to each other, custody can be shared on some sort of regular schedule, when a relocation is involved it often becomes increasingly difficult to keep both parents involved to the degree that the court (and the parents) would like.

More and more often, we see the courts relying on the importance of having both parents involved, and that involvement being one of the chief determinants of what, exactly, is in the children’s best interests. It’s less a question of one parent or the other being more important, and more a question of how to keep both parents involved to the greatest degree possible.

When we start talking about a relocation, we start talking about different types of schedules. Instead of week on/week off, 4-3-3-4, or even alternate weekends, we start talking about children spending larger chunks of time (potentially an entire summer or the majority of some of the longer major school holidays) in geographically disparate areas. Though shared custody on a week on/week off schedule is often distasteful, imagining losing an entire summer (or, worse, EVERY summer!) isn’t much more palatable.

But that’s the thing about the military: there’s often not much choice. And we have a pretty large contingent of military families in our area, to say the least, so most family law attorneys – and judges handling family law cases – have a lot of experience with military families and the unique challenges they face, particularly when someone is PCSing. Of course, there’s a difference between a relocation, and how the court treats it, when you’re the military spouse and when you’re the active duty military service member. Let’s first address those differences, and then go into some of the finer points of what happens when a military service member PCSes or even deploys.

When you’re the military spouse

Unfortunately, when you’re the military spouse, you’re not given any more latitude than a non-military person who wants to relocate.

If you have a choice when it comes to the relocation, your decision to relocate will likely be looked at fairly critically. As we’ve already discussed, as far as the court is concerned, one of the most important factors when it comes to deciding on a visitation schedule is the degree to which the children will be able to have a close and continuing relationship with both parents. If you’re moving because of YOUR choice, and it impacts the ability of the children to continue to have a relationship with their other parent, it will be looked at particularly critically by the court.

Can the court tell me that I can’t move?

No, of course not! You’re an adult, and you’re free to move wherever your choose. But, unfortunately, that’s only part of the issue here.

The court CAN tell you that, while you’re free to relocate, you can’t take the children with you. So, for most moms, the practical implication is that the court can pretty much say that you can’t relocate.

What if I move anyway?

That’s where it gets complicated. In general, I think it’s always a good idea to consult with an attorney BEFORE you take any big steps, like going ahead and moving. Regardless of your choice, whether you consult with an attorney or not, and whether you decide to move or stay put, you should know that there can be some pretty unattractive consequences.

Sometimes, it’s easier to ask for forgiveness than permission. If you’ve already relocated before your case comes before the judge the first time, then your relocation won’t be considered a relocation. It’s just the status quo.

If, on the other hand, you ask the court for permission to relocate, the court will often say no.

That’s not always the case, though. Sometimes, trying to go ahead and move can be extremely damaging to your case. Lately, we’ve seen a number of cases where someone moves away, and the other party files emergency petitions with the court. An emergency petition can be heard ex parte (meaning, without you having notice or an opportunity to appear), and the judge can order that you and the children have to return to the Commonwealth. On at least one occasion, I heard of a local juvenile court judge calling a woman and leaving her a voicemail to tell her she had to return!

In these cases, the damage is pretty multi faceted. Of course, there’s the expense and inconvenience of moving that now has to be taken on twice – the move away, and the return. It can be damaging for children, in the sense that they’re being uprooted again, which is probably confusing and a little scary. There’s also the damage to your case, if the judge feels like your move was taken on in bad faith in an attempt to keep dad out of the picture. However justified you may be, it can be hard to overcome that initial bad impression created by the emergency petition.

So, can you just move? Maybe. But it’s probably a good idea to talk to an attorney before you take any drastic action, so that, whatever you decide, you can at least have a plan of action for how to deal with the potential consequences.

What if he PCSes? Do I have to stay here then? Do I have to follow him?

The good thing about being a military wife (or ex wife) is that his orders will likely change before too long – unless, of course, he’s nearing retirement age and plans to stay in Virginia indefinitely.

It’s often better to just bide your time until he gets a permanent change of station, so that you’ll be a little more free.

Generally speaking, you’re stuck in Virginia for as long as he is. But no one can make you move to follow him wherever the military might send him, and no one will make you stay right here once he’s gone.

Of course, where he goes will matter. If he’s getting stationed in Northern Virginia or North Carolina, the judge probably won’t let you relocate to California. But if he’s stationed in Texas or Japan or California, you’ll have a lot more freedom of movement. Either way, though, him moving will allow you a lot more latitude than you’d have otherwise.

It’s never easy to be the military spouse, and it’s even more difficult once you separate – especially if you have children in common and you’d prefer to raise them closer to your own family and support network. Moving them away from their father, though, will likely prove difficult, and that’s something that you should be aware of.

If he relocates, can he “win” custody from me?

Probably not. His relocation won’t hurt his case (at least, not like your willful relocation might hurt yours), but that doesn’t mean he’ll have a good argument for winning custody. If you want to stay put, you’ll likely be able to.

Especially if he’s deployable or works an inconsistent schedule, that will factor in to a custody decision.

If he relocates, can I relocate?

It’s helpful, for sure! I like the facts of the case better if you stay put, at least until you’ve won primary physical custody, but it’s possible that you could relocate at the same time as him and still keep primary physical custody.

If you BOTH relocate simultaneously, there is an argument to be made that, either way, it’ll uproot the kids – so you and dad are more or less on even footing. Both mom and dad could potentially make an argument that they would be the better primary physical custodians, so that’s just something to be aware of.

You’ll also want to consider where his relocation may be. If he’s relocating to North Carolina or somewhere else that’s relatively close, it won’t free you up to move anywhere in the country. To the extent possible, the judge will want to see that your children are able to establish and maintain a relationship with both parents.

It’s always a good idea to talk to an attorney BEFORE you move, though, to get an idea of any possible issues you may run into beforehand.

What does custody and visitation look like if we relocate?

Custody and visitation changes completely when there’s geographic distance between the parents, especially once the children reach school age.

Usually, custody isn’t so much a win or lose type situation as you might think; the judge just decides to what degree the parents will share custody. In these cases, though, someone usually has to “win” primary physical custody because of the school academic calendar. Kids can’t go back and forth very freely once they’re in school; they need to stay put for the majority of the school year so that they stay on track academically.

There are some significant advantages and disadvantages with this. For one thing, assuming you win custody, it gives you control over the better part of the year.

It does, though, mean that you’ll have to contend with the kids being gone for larger chunks of school holidays and summer vacations – which can lead to complaints that you have to do all the work but have no chance to share in any of the fun. (And, let’s be honest, that’s a fair criticism.)

There’s no “one size fits all” to these types of cases, so it may be difficult to negotiate an arrangement that works. Of course, if you go to court, you’ll have little role in the decision making process at all, and you’ll have to deal with whatever the judge orders.

It won’t be easy, and it will likely involve your children being gone for larger chunks of time than what you’re used to, but it can be done – and, if relocation is important to you, it may be worth it.

What if he’s deployed?

Deployment probably won’t open you up to a relocation. After all, deployment is temporary, and, as far as the military is concerned, it doesn’t change his permanent duty station.

It will give you more freedom, at least during the deployment, to move around, visit friends, and vacation freely, though. But it doesn’t come without strings attached.

Make up time

When one parent is deployed, the other parent is often expected to offer make up time. Maybe not 100% of the time that he missed, but it wouldn’t be inappropriate for dad to get a larger chunk of time both before and after his deployment to make up for some of the time he’ll be spending away.

You should be prepared to be flexible for requests like this; my experience is that judges are sympathetic and do tend to honor these requests. It’s not enough to complain that your schedule shouldn’t always revolve around his. Though it’s definitely inconvenient, especially in this context, it’s probably a good idea to keep in mind that it does, sometimes, work in your favor as well. (And, hey, at least he’ll be completely gone for 6-12 months!)

Delegation of visitation

Likewise, the court is often sympathetic to requests from an active duty military service member to delegate his visitation to someone else during deployment.

He can’t have both – make up time AND delegation of visitation – but he can choose how he wants to allocate some of his time while he’s deployed.

It may be that he wants to delegate his visitation to his parents, but it also happens sometimes that he wants to delegate to his new wife.

Especially if he and his new wife have children in common, this will be seriously considered by the court. If you think she’s inappropriate, for whatever reason, you will have an opportunity to raise this concern in front of the court, if you oppose it, but you’ll have to have pretty good evidence to support your conclusion.

It’s not easy, but where there’s a will there’s a way – and where there are children in common, there’s often a pretty strong will! That’s not to say that this will be easy, or that you and your child’s father will suddenly be of one mind when it comes to what’s best for the kids (hey, I’m not unrealistic!) but, sometimes, necessity creates common ground.

If you have any additional questions or need more information, consider requesting a copy of our military divorce book, our custody book, or schedule an appointment with one of our attorneys by calling us at 757-425-5200.