Relocation cases are hard cases to win, and, sometimes, even harder for moms to understand. For someone who has constantly made the children the priority, and who has earned the money needed to provide exceptional care to the children ever since the day they were born, it’s difficult to imagine why you wouldn’t be permitted to make a move, even if it means that you can’t stay near the child’s father anymore. Whether you want to move for a new job or just better opportunities, or you’ve got family that lives somewhere else and could provide you much-needed help (help, perhaps, that your child’s father just isn’t offering you). Whatever the reason, whatever the opportunity, you feel like you should be able to make that decision; a decision that, in your opinion, is clearly in the best interests of the child (which, ostensibly, is the standard that judges in Virginia use to make child custody, support, and visitation decisions).
I know that what I’m going to say today sort of also contradicts other things we say all the time, like that your kids will be okay if you’re okay. Sometimes we even use the metaphor of the air masks in the plane: if you’re going down, you have to put your air mask on before you help with your child’s. Right? We say things like that all the time. But I also feel like I need to say this: you’ll run into some serious difficulty if you hope to or plan on relocating. Well, if you’re planning on taking the kids, that is.
Of course, you’re a grown woman. You can relocate. You can move wherever in the world that you want to move. The court can’t stop you, and you won’t find any language anywhere in your divorce decree or separation agreement that restricts your ability to move away from where you live now. That being said, though, it doesn’t mean that you can just take the kids wherever with you when you go. If you’re planning on taking the kids, you’re affecting the rights that your child’s father has with respect to his kids. Those types of decisions the court DOES have control over.
Not every case is the same, though, and you probably have at least one friend who lives in a different state than her child’s father—and they manage custody and visitation just fine. Right? Well, let’s talk about all the different ways these types of issues can come up, and how things typically work. Though the facts and circumstances can vary, there are typically just a couple of different scenarios that we see.
Keep in mind that in Virginia, like in most other states, best interests of the child is the standard. Though the number of factors that make up the best interests of the child standard vary a little from state to state, there are definitely similarities. I’ll provide you with the best interests of the child factors here, just so that you can keep them in mind as we move forward.
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 importance of these factors can’t be overstated. These are the factors that the judges have to use when custody and visitation decisions are made. These are the factors that attorneys and pro se litigants (people representing themselves in custody cases without attorneys) have to base their entire case around. Definitely make sure to keep these factors in mind as your case moves forward.
1. You just broke up with the child’s father, and there’s no custody or visitation order in place.
Until there’s a custody and visitation order in place, you’re free to do whatever you like—but, then again, so is he. You can travel with the child or even move, technically, because there’s no order or agreement in place that says you have to do something different.
Many moms choose to move at this point. Of course, it’s pretty risky. The child’s home state is wherever the child resides, and that state has jurisdiction over a custody and visitation case concerning the child. If you move him or her to another state, you’ll have to establish residency there before the new state becomes the home state of the child. Usually, that takes six months to a year, depending on the laws of the state in question. (If you’re planning on moving and you want to find out how long it takes in your new state, Google it or call the clerk’s office in the juvenile court in your new state and ask.)
So, what happens if you move? There are really two possibilities; one good possibility, and one bad possibility.
Good: You move, you live there long enough to establish residency, and then your child’s father petitions for custody, support, and visitation (or you petition in your new state). If he petitions in your old state, you can move to have venue transferred to the appropriate venue (your new state). If he petitions in your new state, you’re still good to go—you’ve already moved and established your residency in a new state. Then, he will have the harder case.
Bad: You move, and you don’t live there long enough to establish residency. Your child’s father petitions for custody, support and visitation in your old state. The judge could order that you return the child to the home state. In the worst cases, this can result in a pretty serious prejudice against you (because the judge feels like you’ve been sneaky and tried to keep the kid from the dad or moved to support your own aims without considering the rights of the father and the best interests of the child). Is it possible that the judge could order that you’re allowed to stay? Yes, it’s possible. But it’s difficult to know, ahead of time, exactly how a judge will rule in your case—and so much of his (or her) ruling depends on the specific facts in your unique case.
What can you do to make it more likely that you’ll be allowed to stay in the new state with the kids? Get the kids as integrated as possible in their new home. Enroll them in school, and sign them up for a number of extracurricular activities. Make sure they’re happy and well-adjusted and are making friends. Show that they’re doing well in school and that they enjoy their new home.
A lot of times, judges don’t want to disrupt the kids a second time to return them home. If they have already been moved and have adjusted well, the judge might not want to introduce another school and another home and other major changes into the children’s lives. You stand a better chance of winning on this point if your kids are acclimated well to the new area.
2. You’ve been to court or negotiated an agreement, and custody and visitation is specified as “reasonable and liberal” or something similar, but there’s no requirement that specific days or times be delegated to the child’s other parent.
Custody and visitation can look very different in different families. A lot of times we see specific custody and visitation (something like every other weekend, Wednesday nights, and two weeks in the summer with holidays divided between the parents). Other times, though, it’s not specific. It doesn’t list certain days or times that the non custodial parent (the parent who has the child less) has the child.
Technically speaking, even though this course of action comes with its own inherent risks, this may be the best possible position you could be in if you’re hoping to relocate. (Again, it all often depends on the unique circumstances in your specific case.) Why? Because you can relocate and still argue that you’re providing reasonable and liberal visitation to the non custodial parent.
If you live far from your child’s father, it may not be possible to do every other weekend. Usually, in these types of cases, we see the non custodial parent get longer blocks of time over the summer and during breaks from school. You may want to set the stage for this kind of visitation to take place, so that, if your child’s father decides to litigate on custody and visitation, you can argue that you’ve provided him plenty of opportunity to see the children. If you’re planning on moving, you can move and, technically, still provide reasonable and liberal visitation to your child’s father.
The risk is that, if your child’s father files petitions for custody and visitation (particularly if he does so right away, before you’ve established residency in your new state or had a chance to enroll them in school and activities), the judge will be annoyed. We usually call factor #6, from the best interests of the child factors, the “mom’s downfall.” In this type of case, factor number 6 can certainly rear its ugly head.
Factor #6 says, “[t]he 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.”
The risk is that the judge feels you’ve “unreasonably denied” visitation to the child’s father by moving far away. (There’s no doubt that, although custody and visitation is still possible, it definitely becomes significantly more difficult if you and the child’s father don’t live particularly near to each other geographically.) The risk? You could lose custody.
Again, the more integrated the children become in the new area, the less likely the judge will want to disrupt them, so the key is to get them moved and get them adjusted as quickly as possible. Still, I’ve seen relocation cases won this way, with this type of fact pattern.
3. You’ve been to court or negotiated an agreement, and there is a specific custody or visitation order. If you moved, you would disrupt your child’s other parent’s visitation.
As far as relocation goes, this is probably the worst position you can be in. Whether you’ve agreed to a custody and visitation schedule or whether a judge has already ordered something specific with respect to custody and visitation, you’re pretty unlikely to be allowed to move.
If you can’t do what you want to do and still keep dad’s visitation the same, don’t do it. If you do, your child’s father takes you to court, and you’re found to have violated an order, you could wind up in some pretty hot water. That’s not where you want to be.
You may be able to move to a new neighborhood a couple of miles away, but you should pay attention to the specific wording of your agreement or order. If it says you can’t move, then you’re really stuck.
An agreement isn’t less important than an order of the court, either. In fact, most of the time, when we have a signed agreement, attorneys will make a motion to have the agreement incorporated as an order of the court; then, there’s literally no difference between an agreement and an order where the words came directly from the judge’s mouth.
In this type of case, there’s very little wiggle room.
4. You go to court and ask the judge to allow you to relocate.
As far as relocation goes, this may be your safest option. (Keep in mind, though, that just because I said it’s safe doesn’t mean I think you’ll win.) Relocation cases are ALWAYS hard to win, because the court really believes that what is in the child’s best interest is having two parents who can be involved in the day to day. It doesn’t matter whether your child’s father does or doesn’t do these things; it’s the opportunity to do it that the judge is concerned with. It’s difficult for a judge to make an order that doesn’t allow both parents to contribute equally to the child’s upbringing.
You can always petition the court and request to be allowed to relocate. Your likelihood of success is still relatively low, though, because the judges are really focused on the whole “best interests of the child” thing. It’s hard to argue that a good job for you outweighs the rights of dad. It’s hard to argue that you having your family nearby makes up for dad being further away. (Grandma is not > dad, you know?) Still, this way the judge won’t start off irritated with you because you took the initiative and moved the kids away without his say-so, and you won’t move away only to be ordered to return. You also won’t lose custody because the judge is irritated that you’ve unreasonably withheld the kids from dad. (Keep in mind that, even if you feel like you’ve been more than reasonable, sometimes judges disagree).
Will you win? I doubt it. It’s difficult. Really, really, really difficult. Working with a good attorney certainly can’t hurt your case, though! For more information about relocation or to schedule a consultation to speak with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.