Virginia Relocation Cases

Posted on Jan 14, 2019 by Katie Carter

Virginia relocation cases are always among the hardest. Though I understand why they come up so frequently (especially in an area that has such a high concentration of military families), I can also understand why the courts are so hesitant to allow one parent to relocate with the child.

Like most other things, there are standards that apply when a parent wants to relocate. The standards come from case law (other cases Virginia courts have decided related to relocation) and the statute (the actual law, as created by the legislature). Just like when someone is facing criminal charges, it has to be proven “beyond a reasonable doubt”, when you’re planning a relocation case, you have to meet certain standards, too.

What standards apply in a Virginia relocation case?

There are three standards that apply here: the best interests of the child, the extent to which the child’s relationship with the other parent would be impaired, and the independent benefit of the relocation to the child.

Let’s look at each of these things and discuss.

Best interests of the child

When it comes to custody and visitation, the best interests of the child is the be-all, end-all. If the Ten Commandments applied to custody cases, these would be them! These are the things that all judges are on the look out to see in custody cases, and this is the standard against which people’s petitions for custody and visitation are judged. You should be very, very familiar with these!

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

The extent to which the child’s relationship with his other parent will continue
The court doesn’t want to hear that mom and dad are co-parenting with relative ease and success – and then one parent wants to move the child away to Timbuktu. That would make the child’s ability to have a meaningful relationship with their other parent more or less impossible; certainly, it would be way more difficult.

The further away one parent moves from the other, the less likely it becomes that the parents can share custody. Week on/week off custody (though it may not be desirable for many) is becoming a benchmark. Even if you don’t do a pure 50/50 custody split (many don’t!) having the ability to do every other weekend and a Wednesday night dinner is something that is reserved for parents who live relatively near to each other.
Relocating even just 2-3 hours away can have a marked impact on your child’s relationship with his other parent, and that’s a big thing that the court will look at when it comes to evaluating a parent’s request to relocate.

The independent benefit to the child

It’s not enough to say, “It’s good for me, so it’s good for my child.” In fact, that’s exactly what the court DOES NOT want to hear. If you’re going to show that relocation is in a child’s best interests, you’re also going to have to show some actual, quantifiable benefit that exists for the child.

Better economic opportunity for you doesn’t necessarily translate (in fact, likely does NOT translate) into an independent benefit for the child.

It would have to be a pretty significant benefit to outweigh the involvement of the child’s other parent in the child’s life, especially if he has been involved to a considerable degree before the relocation.

What if I’m remarried?

Just because you remarry doesn’t mean that you’ll get to relocate. Regardless of your reason, the same standards apply here. We’re looking at the child’s best interests, and that’s a pretty involved standard. YOUR best interests, no offense, really aren’t relevant.
Put your case on. The worst you can hear is “no,” right? But still, you should probably expect it, especially if your chief argument is that your remarriage is beneficial for your child. Chances are good that this won’t weigh too dramatically in your favor, unless your child’s father is a deadbeat or otherwise uninvolved.

It would be in a child’s best interests to go with mom in that case – if dad is a deadbeat or uninvolved. Also, if there’s something wrong with dad, like drug abuse or a violent criminal record. Those kinds of things are relevant, and could potentially swing the case in mom’s favor. You’ll also want to look at dad’s ability to be involved. Is he going to be deploying? Is he working a schedule that isn’t conducive to him having more custody than he’d get if you relocated? Will he agree to the relocation, even?

There are a lot of factors, and the burden is, probably unsurprisingly, very high.

Relocation is not easy. In fact, you should probably plan to lose. But sometimes, there’s nothing to it but to do it, and you definitely WON’T be able to relocate if you don’t ask!
For more information, or to discuss your relocation case in detail with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.