Relocation and Custody
Relocation cases are some of the most difficult custody cases to win – in Virginia at least. And, probably, they come up in Virginia with more frequency than they do in some other places because we’ve got such a disproportionately high number of military service members.
I get it, of course. What worked when you and your child’s father were together is different than what works after you split up. When you lived together, you had a little extra support—support that has now, in most cases, been withdrawn. It’s only natural to hope that you’ll be able to move somewhere where you’ll have a little more support – from family members or close friends. Still, though, that doesn’t mean that you really can go.
Well, let me clarify a little bit more. Certainly, you can go. You’re an adult, and you’re free to make your own choices, whether that is to stay or to go. But whether you can take your child with you is another story altogether.
Because, the way the courts see it, both parents have a right to the opportunity to parent their child. Even if, up until now, they haven’t taken that active of a role. (I know, it seems really unfair, doesn’t it?) The court wants both parents to try because, scientifically speaking, all the evidence suggests that children do better in relationships where they have two parents who love and care for them. As far as the court is concerned, that is often what’s in the best interests of the child.
So, when the court focuses in on things that way, other things (like whether you’d find better job prospects somewhere else or whether you’ve got a wide spread network of family and friends to help you somewhere other than where you’re currently living) begin to pale in comparison. The court tends to focus on the importance of the parent/child relationship, whether or not you agree with their assessment, and, as a result, the court’s decisions reflect that perspective.
What else does the court consider when it looks at the best interests of the child? A good question. There are ten factors that, according to the law of the Commonwealth of Virginia, define what type of custody and visitation arrangement might be in the best interests of the child. They are as follows:
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.
Most states have something similar to the best interests of the child factors, but they’re not exactly the same verbatim. If your custody case is in Virginia, though, you should read these factors and make sure you’re familiar with them. Their importance really can’t be understated.
So, you’re saying I can’t relocate?
I’m not saying that you absolutely can’t relocate, but I am saying that, at the very least, it will be difficult. The court gives a lot of importance to dad’s role in this process and, chances are good that, if he wants to be involved, the court will give him an opportunity to be involved. And, yes, like I said before, the court will likely say this even if dad hasn’t been involved much (or at all) up until this point.
If you relocate, it makes custody and visitation harder. It means that you won’t be able to really “share” custody in an appreciable way. (I’m not talking about the specific label of shared physical custody, I’m just talking about the frequency and ease with which you can share responsibilities associated with the child.) It makes everything harder, in fact.
When you have to shuttle kids back and forth over long distances, whether that requires a plane ride or just a road trip, it makes things more difficult—especially considering that, one day, they’ll also have school, social, and extracurricular responsibilities. (And not to mention your own commitments.)
A lot of times, when there’s a lot of distance involved, courts order that one parent has the child during the school year, and the other parent gets the majority of the summer and the best time during the holiday vacations as well. So, as you have probably already surmised, it’s less than ideal from both parents perspectives. And imagine the child’s perspective as well! It would be hard to spend entire summers away from school friends, unable to participate in the same summer camps or extracurriculars that your friends were involved with.
In a lot of ways, relocating is hard on everyone. It may still be that it’s something that you want to pursue and, if that’s the case, that’s fine—but you should also be prepared for the possibility that you’ll lose anyway.
Judges these days tend towards shared custody more and more and even awarding week on, week off custody. Moms typically hate this arrangement with a passion, but still judges are awarding it. As you can imagine, it would be difficult (if not impossible) to share custody week on, week off without living pretty darn close to each other. Even Williamsburg and Virginia Beach could be too far for a school aged child; would you want to drive back and forth every day to take the child to school? Even though, miles wise, it’s not actually that far, it seriously complicates the situation.
For more information, or to ask questions about your unique case and whether relocation might be a possibility, give our office a call at (757) 425-5200.