Virginia Relocation and the “Independent Benefit” to the Child

Posted on May 24, 2021 by Katie Carter

Relocation cases come up a lot. It turns out, many of us move somewhere that we might not otherwise have moved in order to support our spouse’s career. It happens a lot, and not just for the military!

The problem is, though, that when things end up not working out, the spouse who moved regrets it – and starts to think about where else she might be able to live and be a little happier. Whether it’s a question of moving to secure different economic opportunities, to be closer to family or a more defined post-divorce support network, or something else, there are about a million different reason for wanting to leave.

And you know what? I’m sure that, whatever your reason, it’s really not a bad one.

The problem is, though, that it’s very difficult to relocate, especially if your child’s father plans to stay here. That’s not to say that relocation is impossible, but that you should be prepared that it may not be as easy as you might wish that it were.

Can I relocate away from my child’s father — and take my children with me?

That question – Can I relocate? – is a fairly simple one. Yes, YOU can. But whether you can take the children with you is much less certain. The court can’t prevent you from going, but it can prevent you from taking your children – which, to most of us, is kind of like the same thing, anyway.

Can I relocate with the kids?

Maybe. It depends.

In most cases where relocation happens, it happens by agreement of the parties. If your child’s father is willing to sign an agreement that allows you to relocate, then you can. It’s that simple – IF you agree.

But what if you don’t agree that you should be allowed to relocate with the kids?

Well, if you don’t agree, then you’ll have to litigate, and let the judge decide. And you should know that those decisions are based on the “best interests of the child” factors.

Specifically, the court is going to look at your current parenting plan – whether it’s an agreement or a court order – and determine to what extent that visitation schedule could be maintained in the event of a relocation.

All relocations are not the same. Whether we’re talking about an hour or two away, across the country, or across the world – ultimately, the impact of that relocation on the parties’ parenting plan and each parent’s parenting time can be completely different.
It also matters what the future will bring for your child’s father. Is he military, and anticipating new orders? Because, similarly, that’s a relocation – and the court won’t (read: CAN’T) force you to move to follow him – and that relocation would also be a material change in circumstances that could result in changes being made to the existing parenting plan. If he goes, too, you’ll probably find that you’re a little freer.

If, though, it just makes it harder for your child to see his or her father, well, you’re going to have to dig a little deeper.

The court’s perspective is that, generally, the most important thing for a child is to have access to each of her parents. To put it mildly, you’re facing an uphill battle.

To relocate, you’ll need to prove that the move will bring an “independent benefit” to your child

It may sound harsh, but none of this is about you. It isn’t about benefits for you. It isn’t about jobs or income. It isn’t about your family, or your support network. It isn’t about your new relationship.

It’s about the child. To what extent is she benefitted by the relocation? Does the benefit that you articulate outweigh the benefit of being close to her other parent on a regular and continuing basis?

These questions are rhetorical. I’m asking to make you think, not because I’m assuming an answer. Because the answer isn’t necessarily no; each family, and each set of facts, are different. A good dad is good, but they aren’t all good dads. They aren’t all active dads. There are a number of issues that you could be facing – addiction, mental health issues, abuse, etc – that could mean that the child would be benefitted by relocating.

The best interests of the child isn’t fixed; it’s dynamic. It’s constantly changing, and it’s entirely dependent on the child and the parents and the facts involved in the case. A relocation case isn’t one that’s easy to win, but it’s not entirely out of the question either, depending. It’s a good idea, if you’re planning on pursuing a relocation, to at least talk to an attorney to try to determine what you should do to put yourself in the best position possible to prepare to litigate, if that’s the route you decide to take.

You may find yourself working with a Guardian ad litem, taking a parenting education seminar, working with a custody evaluator, taking drug and/or alcohol tests, or any other number of things – it’s best to be prepared. It’s best to understand the vocabulary of custody, and how it all works – including the new laws. For more information, to schedule a consultation, or to request a copy of our free custody book, give us a call at 757-425-5200.