Can I move with our child in Virginia?

If you’re feeling unsafe, it’s only natural to want to run away—particularly if the very person who is making you feel unsafe is your child’s father. In my career, I’ve heard some pretty awful horror stories about the situations that have made my clients feel like they have no choice other than to flee. Usually, they run away to somewhere safe—like their parent’s home. In fact, recently I’ve had a number of cases like this, where my client took the child to another state where her parents lived in the hopes that she would be removed from the clutches of her child’s father.
In some cases, it works. In other cases, it doesn’t. I’m definitely not here to tell you to either stay or go, but just to give you an idea of some of the complications than can come up if you try to move away with your child. Spoiler alert: it’s pretty risky behavior.

Parental Kidnapping: What You Need to Know

Technically, there’s no such thing as parental kidnapping until there’s a custody and visitation order or agreement in place. Up until that point, either parent is presumed to be free to take the child wherever whenever. If you take the child and move and you don’t already have a custody agreement or order in place, it’s unlikely that you would be charged with parental kidnapping if there’s nothing in place that specifies the time during which each parent is allowed to have the child. Will there be other consequences? It’s possible, but we’re getting to that.
If there is a custody order or agreement in place and you’re violating the agreement, you’re really going to find yourself in hot water. Under no circumstances should you leave the Commonwealth or make it so that your child’s father scheduled visitation cannot take place; if you do, you’ll definitely face the displeasure of the court. Those types of cases are the ones where we sometimes see custody change hands from mom to dad. The way the court sees it, if you can’t follow the court’s order with respect to custody and visitation (and whether the judge issued the order or whether you signed an agreement, if it has been incorporated as an order, it’s viewed with the same importance as if it came straight out of the judge’s mouth), maybe dad should have a chance to see whether he can do any better.

So, can I take the child and move?

I’m not going to come out and tell you that you can take the child and move, even if you don’t have a custody order or agreement in place. Sometimes, it’s easier to ask for forgiveness than permission. In other cases, though, I’ve seen attempting to get the child away really hurt mom’s credibility in court. (Judges don’t love this kind of tricky behavior.)
There may be nothing that expressly forbids you from moving, but that doesn’t mean that it’ll be easy, if you do decide to go.
Technically, whatever state the child has lived in for the past six months is the state that has jurisdiction over custody, visitation, and support. If your child has lived in Virginia for the last six months, Virginia has jurisdiction. Virginia, like most other states, is usually interested in keeping its people in Virginia. The risk that you run, if you leave, is that your child’s father will file a petition (possibly even an emergency petition) for custody and visitation. When that happens, the judge can order that you be forced to return to Virginia with the children. (Well, technically, the court can’t really order that YOU return, but it can order that the children be returned—which, to most moms, is pretty much the same thing anyway.) In fact, I recently had a case where this exact thing happened. Mom left Virginia over concerns that her physical safety was in jeopardy (not the child’s safety, but hers) and tried to establish a residence in New Hampshire, where her family (mom, dad, brother, and sister) lived. Her reasoning? She needed someplace where she would have additional family support, which her child’s father wasn’t providing to her here.
Her child’s father filed an emergency petition, and the judge entered an order requiring that she return to Virginia within 48 hours. She had no choice, at that point, but to return with the child. As soon as she arrived, she hired our firm to represent her in her custody case. When we were preparing to go to court for her initial appearance, we were both very worried that the judge would hold her choices against her in ruling on custody. Fortunately for her, the judge didn’t—but we all worried a lot about what kind of situation we’d be walking into. Would the judge think that mom callously left, trying to keep dad from having any kind of meaningful relationship with the child? Did the judge think that mom was mean or vindictive, and wouldn’t support dad’s relationship developing with the child? Would the judge assume that dad would be more likely to obey court orders? It all worked out, in the end, but every case is different, and it’s hard to predict ahead of time what way a judge will go.

What if I’ve already gone?

If you’ve already gone, I can’t stop you. Basically, what happens now depends on whether or not dad has filed any petitions. If he has, you might want to hire an attorney and prepare to fight him. (See the next section below for more information on relocation.)
What if dad doesn’t file anything? That’s the best position possible, if relocation is your goal. Another state can gain jurisdiction over your child after a period of six months, but you’d have to be there long enough for that to happen. If your child’s father files any petitions with the court before that six month period is up, you’re at risk of being forced back to Virginia with the children. Will he? Well, you know him better than me. Do you think he would? Is he that interested in being an involved father, or is he just the kind of man who can’t accept that he doesn’t have the ability to control your decisions anymore? Does he have $5,000-7,000 to fight you in court? If he does, would he spend it on the kids? On this part of the issue, you definitely know better than me.
If he leaves you alone for six months, though, then you can file for custody, visitation, and support in your new state—and your new state will be much less likely to order that you return to Virginia. At that point, you’ll likely get custody, and he’ll receive visitation. For more information on how that might operate in your state, though, you might want to talk to an attorney licensed to practice in that state. If I were you, I’d mark the six month date on my calendar, and plan to speak with an attorney about a week before the deadline passes. Get custody and visitation petitions filed in your new state, and you’re pretty much golden.

If I fight him in court, what are the chances that the judge will allow me to relocate?

Unfortunately, your chances probably aren’t all that good. Relocation cases in Virginia are particularly tricky, because, the way the court looks at it, it’s most important for a child to have access to both parents. It would be very difficult to make the argument to the court that something else—mom’s job or access to other family members—is so valuable that it overrides dad’s interests.
In Virginia, most decisions related to custody and visitation are made based on the best interests of the child factors. If you haven’t read them before, now’s a good time:
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.
Because the judges in Virginia tend to so highly value both parent’s opportunity to collaborate with respect to raising the child, relocation is very rarely granted.
For more information, or to schedule a consultation with one of our licensed and experienced Virginia custody attorneys, give our office a call at (757) 425-5200.

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