Hampton Roads has a very significant military presence. We are grateful every day to have a tremendous number of men and women in uniform protecting our freedoms at home and abroad. We’re used to seeing soldiers and sailors everywhere we go, driving their cars, dropping off their children, waiting in line behind us at the grocery store. Almost all of us know someone (probably lots of someones) who serve our country, so we tend to be patriotic and incredibly supportive of our troops. We constantly see American flags flying, yellow ribbons on trees, “I love my sailor” stickers, and hear the deafening sound of the jets flying low overhead, especially on cloudy days. It’s impossible to forget how close we work, shoulder to shoulder, really, with the men and women who are protecting our freedom every single day. It’s hard not to feel awed and grateful for their sacrifices, not only from the service members themselves, but also from their spouses and their children.
It’s not an easy life. We all know that, but I think it’s a difficult thing to appreciate unless you’ve experienced it first hand. I see it all the time because my law firm handles so many military divorce and custody cases.
Military families are constantly moving. We know that, because we’ve seen our neighbors and friends and co-workers pick up and move somewhere new (Japan, Texas, Germany, Alaska, Florida, North Carolina, wherever) at a moment’s notice. It seems like some military service members change permanent duty stations like the rest of us change our clothes. The modern day military family is constantly moving, constantly changing, constantly responding to changed orders and promotions.
For the military wife, especially, these changes are difficult. Being a military wife means that its difficult to hold down a job. The constant moving means it’s hard to keep a job for any period of time, so their resumes look odd and disjointed. Any kind of job requiring any state-specific certificate or training provides a whole host of other difficulties, as the wife scrambles to get her certifications or licensures approved or switched to another state. Sometimes, that requires taking classes or tests (that, of course, cost money) to get approved. And for what? To find out that they’re going to have to move again in a year or two? It can be demoralizing.
Not only that, but these women find themselves away from their hometowns, their families, friends, and everything else they liked about the places they used to call home. It’s hard to make new friends with other military wives, too, because they could get new orders and have to move away at a moment’s notice, too.
There’s no question that it’s difficult to be a military wife, especially if the marriage starts to go downhill as well. It’s no wonder that these women are itching to move back to their friends, families, and home states as soon as possible.
If there were children born or adopted during the marriage, though, that’s much, much easier said than done.
Relocation in Virginia
Of course, the court can’t really restrict your ability to move. You can go wherever you want, whenever you want. The catch is, though, that if you have a minor child that you want to move with you, and the child’s other parent lives in Virginia (and objects), you’re going to have a hard time. Unless your child’s father signs an agreement allowing you to relocate, it may be incredibly difficult for you to move further than an hour or two away. Relocation cases in Virginia are some of the trickiest cases to win, because the courts really believe that it’s important for a child to have the benefit of both parents, if at all possible. In cases where both parents really want to be there to raise the child, the court probably isn’t going to allow one of the parents to move far, far away from the other.
So, how would a judge even begin to make a decision about what kind of custodial arrangement is appropriate in a particular set of circumstances? Custody cases in Virginia are based on the “best interests of the child” factors. Judges (and guardians ad litems) are supposed to consider these factors when making a decision regarding a child’s custodial arrangement. The ten best interests of the child factors are codified in Virginia Code Section 20-124.3, but you can read them here, too:
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.
Chances are, as long as your child’s father has Virginia as his permanent duty station, there’s not a whole lot you can do. Even if he’s deployed, so long as his permanent duty station is still listed as Virginia, you’re probably stuck living here.
If you wanted to try a relocation case anyway, you’d have to make a strong argument, focused on the best interests of the child factors, about why the move will benefit the child. It’s not enough to say that because you have family there or because you will have better economic opportunities that it’s better for the child. Without truly compelling evidence (again, focused on those best interests of the child factors), the court will prohibit the relocation—at least, the relocation with the child.
Until your child’s father receives a change in orders, you’re probably stuck living in the Hampton Roads area. However, once he moves, you’re probably free to move, too. There’s no requirement that you move to follow your child’s father after he moves to a different permanent duty station.
If we won’t let me relocate, what do we do?
If your child’s father is unwilling to let you relocate, talk to him about what his concerns are. Is he afraid he’ll never get to see the child? Talk to him, and try to figure out a way to make it work. A lot of times, negotiation is a great way to try to reach a fair resolution. You can negotiate either by hiring your own attorneys, or going to mediation. It’s important that the two of you talk about your concerns, your concerns for your child, and to have an opportunity to really listen to each other. You may want to consider offering the other parent more visitation time during school breaks or summer vacations, or even offer to cover some or all of the transportation expenses involved with the move.
In cases where one parent lives relatively far away from the other, traditional custody and visitation arrangements won’t work. There’s no way to alternate every other weekend or offer Wednesday evening dinners when you live thousands of miles apart.
In these types of cases, we often see really extended visitation over the summer vacation or longer holidays from school. It’s not unusual for a parent to have the child for six to eight or more weeks in the summer when the other parent relocates. Whether the parents agree to it themselves, or whether the judge orders it, in cases where relocation happens, the other parent almost always gets a much, much larger block of time all at once.
You’ll have to ask yourself, when you push for this relocation, whether that is a possibility you can really live with. Would it be a problem for you to miss virtually the whole summer, every summer? Is relocating worth that?
The general rule of thumb is that the relocating parent pays the costs of transportation. Of course, this, like everything else, is negotiable and depends on the circumstances. But it’s likely that, if you take a relocation case to the court and win, you’ll get stuck paying the costs of transportation.
It’s not only a question of whether you can afford to pay to send your child back and forth. It’s also a question of the level of supervision required. You can’t just stick a 5 year old on an airplane alone and send them across the country. You may have to fly with your child and fly back, which adds dramatically to the expense.
Another thing to consider is the possibility of electronic visitation. Even if you and your child’s father don’t live geographically close to each other, it’s possible for your child’s father to see your child every single day (though you may not want to propose that because then you’d be tethered to the computer forever). FaceTime, Skype, and other video chat services are making it easier than ever to communicate with people in real time, even if you’re across the world from each other. You can send text and picture messages and emails, too.
Keep in mind that you can suggest to your child’s father that you have electronic visitation during the week, even if the two of you don’t live in the same city or state. If you demonstrate your willingness to help foster the relationship now, you’ll help your case for relocation later.