Virginia Custody Laws: Can I move with my child?

Posted on Aug 31, 2015 by Katie Carter

We see it all the time. When things don’t work out between a woman and the father of her children, her first impulse is to pack up and move back home. Without the support provided by the child’s father, there seems no reason, to mom at least, to stick around. In fact, the thing that seems the most logical is to just head back home, wherever that is. Whether it’s halfway across the world, on the other side of the country, or in the next city over, relocation can present a lot of different issues.
If you’re a mom and you’re planning on trying to relocate, you’re in the right place. I’m not saying it’s going to be easy; in fact, in most cases, relocation is an uphill battle (to say the least). Still, at least by reading this article you’ll get up to date, Virginia specific information regarding custody law in Virginia, and you can make your choices from there.
In many cases, it’s advisable to talk to an attorney about your unique case BEFORE you make any big decisions. Still, my goal here is to give you the information you need to make the best decisions possible for you and your children.
It’s totally understandable that, when things don’t work out between you and the father of your children, you’re ready to move back home (or wherever it was that you were recently the happiest). It makes sense, but in Virginia, at least, it’s often not that easy. If your child’s father still lives in Virginia, you may find yourself stuck.

Things are over between me and my child’s father. Can I move away?

Technically, yes. But—listen—before you start packing. Technically, in Virginia, before there’s any kind of custody order in place, you are free to come and go as you choose. But, then again, so is he. There’s no such thing as parental kidnapping in Virginia, unless you or your child’s father are somehow violating an order.
So—you can move, as long as there’s no custody order in place. How would you get a custody order in place? There are a couple of different ways. You can file for custody, visitation, and support at the juvenile court, or you could even have custody and visitation determined in your separation agreement, if it’s part of an underlying divorce action. But, until you have some sort of document in place that specifies how custody and visitation will be handled, you can technically take the child wherever you want.
But (and this is a pretty big but) taking rash action is not without its risks. Say you decide to move back home, and there’s no custody or visitation agreement that says you can’t. Your child’s father can go to court and file petitions for custody, visitation, and support. Until you have lived in your new state for long enough that the new state has jurisdiction over the children (the time period varies from state to state, but it’s usually something like a 6 month residency requirement), you run the risk of having a judge in your old home state order that you return.
Well, to be fair, the judge can’t really force YOU to come back—but he can certainly require that the kids be returned. You’re free to move wherever you want, but, when it comes to the kids, you have a lot less freedom. (Why? Well, mostly because your child’s father has rights as a parent, too.)
Will that happen? It’s hard to say. If, on the other hand, your child’s father DOESN’T file any petitions for custody, visitation, or support, and you live in your new state for long enough to establish residency for the kids there, you may have an easier time being allowed to stay, especially if you can demonstrate that you’ve done things like enrolled the kids in school or daycare, and involved them in extracurricular activities. As you can imagine, going into court and telling the judge how well-adjusted and happy the kids are can go a long way.
If you were trying to analyze the risk/benefit for a situation like this, it’s pretty difficult. It’s hard to know, ahead of time, whether you’ll be able to get so far. That being said, though, we often do tell women who meet with us that it’s easier to ask for forgiveness than permission—with the caveat that, if the judge tells you that you have to move back, you’ll have to move back (or face some pretty dire consequences). Chances are, though, that if you try to do it the right way (by filing a petition for custody and asking to relocate), the judge won’t allow it anyway. Is it worth the risk? Maybe. But you have to do it with the knowledge that some things just can’t be known in advance, and that your actions can have consequences. Worst case scenario, you’ll have to come back. Best case scenario, he’ll let you go (at least for long enough for you to establish residency). Remember: it won’t be easy for him, either, because he’ll have to file petitions on his own, or hire an attorney to do it for him. Either way, it takes time and costs money. Will he do it? You know him best.

What if I go to court and ask to relocate?

Women go to court all the time over relocation. Usually, they’re pretty difficult cases to win, but they’re not impossible.
When the court considers a custody and visitation arrangement, what it’s most concerned with is what is in the best interests of the child. It’s a standard that’s fairly standard across the country, though each state differs a little in terms of exactly what constitutes a child’s best interests. In Virginia, we have ten factors that describe what’s in a child’s best interests and, as far as custody cases go, they’re pretty much the be-all end-all. So, what are they? Here you go:
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.
So, when a judge listens to a relocation case, he’s looking for information that will help him determine exactly what is in the best interests of the child in question. It’s not enough to say that your opportunities will be better there, or that you’ve got an amazing job offer in the new place; as far as the judge is concerned, though money is certainly beneficial to a child, it’s not of greater importance than the child’s relationship with his other parent. Similarly, relationships with other family members and friends won’t override the importance of the father/child relationship.
To prove to the judge that the move is in the child’s best interests, you’ll need to gather a lot of information. To prove that the move is MORE advantageous to the child than living near and having a relationship with the child’s father would be, you’ll have a lot of work to do. It’s not enough to just describe the awesome schools or the cool sports programs, just like it’s not enough to say that, with all the extra family around, the relationships with grandparents, aunts, uncles, and cousins will make up for the loss of the dad. You’ll have to be creative, and you’ll have to make a pretty strong showing.

What if he agrees to let me go?

If your child’s father has agreed to let you go, count your blessings. (No, really—count them.) This is huge.
Before you go, though, get it in writing, if you can. Even though it’s probably unlikely that he’ll change his mind later and take you to court, stranger things have happened. It’s definitely best (and safest) to summarize the entirety of your agreement in writing, if possible.
Ideally, your agreement would handle everything regarding custody and visitation, including whether legal custody is joint or sole, whether physical custody is primary, shared, or split, how visitation will be handled, who pays the costs of visitation (which can be high if you relocate far away), and how much child support will be awarded. If you can’t get all that in place just yet, that’s okay—but at least to try memorialize your agreement allowing you to move with the child.

What if my child’s father is in the military and is about to be transferred?

If you’re currently living in Virginia, but your child’s father is military and it’s looking like he may get transferred to another permanent duty station, you’re probably wondering whether you can relocate. After all, why stay in Virginia when he isn’t, right? Right.
Generally speaking, if he moves, you can, too. You’re not going to be stuck in Virginia after he’s gone. Remember: this is all about what is in the best interests of the child. If he leaves Virginia, all bets are off. You’ll most likely be allowed to relocate.

What do custody and visitation normally look like when a parent has relocated? What can I expect?

As you can probably imagine, custody and visitation look different when parents live in different places. If it’s not possible to do every other weekend, you’ll have to come up with some other arrangement that takes the child’s best interests into account.
Because every other weekend isn’t possible, you’re probably looking at longer blocks of time with your child visiting dad. If that isn’t something that is palatable to you, you may want to consider it now—before you decide to relocate. Generally speaking, when parents live far enough from each other to require a plane ride, we see larger blocks of the summer vacation and holidays awarded to the non custodial parent. In some cases, dads get entire summers.
Is that something you can handle? It’s definitely something to consider. Not living near your child’s father creates logistical issues that you should certainly be aware of before you make any big decisions. Additionally, the general rule (in Virginia at least) is that the relocating parent is responsible for the costs of visitation. If you reach an agreement that says something different, that’s fine, but you should be aware of what will likely happen if you litigate the issue.
We see parents allowed to relocate all the time. We also see parents whose totally legitimate requests to relocate be denied. It’s not an easy case, but, if it’s important to you, it may be one that’s worth trying to either negotiate or litigate. Consider your options, maybe even consider attending Custody Bootcamp for Moms (LINK), and come in for an appointment to talk about your case. We can give you an idea, based on our experience, of your likelihood of success, and talk to you about your available options. Give us a call at (757) 425-5200 for more information.