Relocation in Virginia Military Custody Cases: Part 2

On Friday, we talked about relocation when you’re a military spouse. (Spoiler alert: it’s tough!)

Today, we’re going to talk about the other side of the coin – what happens in a Virginia custody case when HE relocates because of a permanent change of duty station?

For the active duty military parent, relocation is a bit different. We talked about it from a military spouse perspective the other day, but, in general, that’s regarded a bit differently by the courts. Where the parent has a choice in the relocation, it’s regarded less favorably. The courts really place a lot of importance on children being able to maintain relationships with both parents, and a relocation makes that considerably more difficult. It makes all of the normal custodial schedules much more difficult to navigate, too – whether we’re talking about week on/week off custody, a 4-3-3-4 arrangement, or even alternating weekends, these things become difficult (or impossible!) if there’s any real amount of geographical distance between mom and dad.

But, in our area, judges understand the military. And, if dad doesn’t have a choice, he doesn’t have a choice.

Is it inconvenient for you? Yes, probably. But there are also some advantages, too.

If he relocates, can he “win” custody from me?

Probably not. His relocation won’t hurt his case (at least, not like your willful relocation might hurt yours), but that doesn’t mean he’ll have a good argument for winning custody. If you want to stay put, you’ll likely be able to.

Especially if he’s deployable or works an inconsistent schedule, that will factor in to a custody decision.

If he relocates, can I relocate?

It’s helpful, for sure! I like the facts of the case better if you stay put, at least until you’ve won primary physical custody, but it’s possible that you could relocate at the same time as him and still keep primary physical custody.

If you BOTH relocate simultaneously, there is an argument to be made that, either way, it’ll uproot the kids – so you and dad are more or less on even footing. Both mom and dad could potentially make an argument that they would be the better primary physical custodians, so that’s just something to be aware of.

You’ll also want to consider where his relocation may be. If he’s relocating to North Carolina or somewhere else that’s relatively close, it won’t free you up to move anywhere in the country. To the extent possible, the judge will want to see that your children are able to establish and maintain a relationship with both parents.

It’s always a good idea to talk to an attorney BEFORE you move, though, to get an idea of any possible issues you may run into beforehand.

What does custody and visitation look like if we relocate?

Custody and visitation changes completely when there’s geographic distance between the parents, especially once the children reach school age.

Usually, custody isn’t so much a win or lose type situation as you might think; the judge just decides to what degree the parents will share custody. In these cases, though, someone usually has to “win” primary physical custody because of the school academic calendar. Kids can’t go back and forth very freely once they’re in school; they need to stay put for the majority of the school year so that they stay on track academically.

There are some significant advantages and disadvantages with this. For one thing, assuming you win custody, it gives you control over the better part of the year.

It does, though, mean that you’ll have to contend with the kids being gone for larger chunks of school holidays and summer vacations – which can lead to complaints that you have to do all the work but have no chance to share in any of the fun. (And, let’s be honest, that’s a fair criticism.)

There’s no “one size fits all” to these types of cases, so it may be difficult to negotiate an arrangement that works. Of course, if you go to court, you’ll have little role in the decision making process at all, and you’ll have to deal with whatever the judge orders.

It won’t be easy, and it will likely involve your children being gone for larger chunks of time than what you’re used to, but it can be done – and, if relocation is important to you, it may be worth it.

What if he’s deployed?

Deployment probably won’t open you up to a relocation. After all, deployment is temporary, and, as far as the military is concerned, it doesn’t change his permanent duty station.

It will give you more freedom, at least during the deployment, to move around, visit friends, and vacation freely, though. But it doesn’t come without strings attached.

Make up time

When one parent is deployed, the other parent is often expected to offer make up time. Maybe not 100% of the time that he missed, but it wouldn’t be inappropriate for dad to get a larger chunk of time both before and after his deployment to make up for some of the time he’ll be spending away.

You should be prepared to be flexible for requests like this; my experience is that judges are sympathetic and do tend to honor these requests. It’s not enough to complain that your schedule shouldn’t always revolve around his. Though it’s definitely inconvenient, especially in this context, it’s probably a good idea to keep in mind that it does, sometimes, work in your favor as well. (And, hey, at least he’ll be completely gone for 6-12 months!)

Delegation of visitation

Likewise, the court is often sympathetic to requests from an active duty military service member to delegate his visitation to someone else during deployment.

He can’t have both – make up time AND delegation of visitation – but he can choose how he wants to allocate some of his time while he’s deployed.

It may be that he wants to delegate his visitation to his parents, but it also happens sometimes that he wants to delegate to his new wife.

Especially if he and his new wife have children in common, this will be seriously considered by the court. If you think she’s inappropriate, for whatever reason, you will have an opportunity to raise this concern in front of the court, if you oppose it, but you’ll have to have pretty good evidence to support your conclusion.

It’s not easy, but where there’s a will there’s a way – and where there are children in common, there’s often a pretty strong will! That’s not to say that this will be easy, or that you and your child’s father will suddenly be of one mind when it comes to what’s best for the kids (hey, I’m not unrealistic!) but, sometimes, necessity creates common ground.

If you need help working through some of the issues related to your active duty military ex-husband’s relocation, give our office a call at 757-425-5200.

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