Virginia Child Custody: Moving and Taking the Kids

Moving and taking the kids

If you and your child’s father are no longer together, it makes sense that, sooner or later, one or both of you will find someone else.
And it probably goes without saying that your someone else comes with his own baggage as well. Blending families – and making it work – is a complicated contention even in the best of situations. But in some of the more tricky scenarios, it can seem downright impossible.

One of the most common scenarios I see is when a new relationship involves moving away from the area. While a mom and dad may have been able to hammer out a custody and visitation arrangement, if one of the parties moves away, it can make the previously agreed upon (or court ordered) situation impossible to manage.

So, what’s a mom to do?

If you want to move, can you take the kids?

Well, it’s hard to say. If your child’s father agrees to let you go, then, yes, you can go. You’ll want to negotiate a new custody and visitation arrangement, but it’s not impossible. Traditionally speaking, in cases where mom and dad don’t live in the same geographic area, visitation looks different. Instead of alternating weekends or allowing weeknight overnights, we see longer periods of visitation instead. Multiple weeks during the summer, the bulk of the school holidays, that kind of thing. Of course, the only limitation (in an agreement) is what your child’s father is willing to agree to do.

But what if you can’t agree on a parenting plan?

If you can’t agree, the answer is the same: you’ll have to go to court and let the judge decide. It’ll be a case where you argue about what’s in the best interests of the child. (Spoiler alert: it will NOT be a good argument to tell the judge that you and your new love will provide a stable family or that they’ll need him to be their dad.)

It’s hard to override the court’s preference for an arrangement that allows both mom and dad to be present in a child’s life.

Though the court can’t restrict YOUR movement – you can always go – the court can tell you that you can’t take the kids with you if you do. If you want to make a best interests argument about why the move is best for the children, you’re going to have to work pretty hard – especially if you’re not planning on offering some pretty substantial visitation to dad.

I’m not saying you can’t win. It’s possible. People DO win relocation cases, it’s just not always easy. And it’ll be easier or harder depending on the facts of your specific situation, which are facts that I obviously don’t have as I sit here writing this.

All things considered, it’s hard to win relocation. If your child’s father fights you on this, you need to prepare yourself for an uphill battle. And keep in mind that, even if you DO win, you may find that the parenting plan the judge orders is not what you would have chosen. I’ve seen cases where the dads ended up getting ALL the time off of school and the majority of the holidays. I can’t speak for those moms, but at some point “winning” comes at a cost that you may regret having to pay.

What if I take the kids anyway?

So, you can also go to “it’s better to ask for forgiveness than permission” route. Without going to court, you can pick up and move the kids, especially if you don’t have a parenting plan in place as of yet. (If you do, and you violate the order, you could find yourself in some very hot water, including a potential change of custody.)

If you don’t have a parenting plan in place, you can take them – of course, so can he, but that may be beside the point – and try to beg forgiveness if you have to answer to the court for it. What would happen? If you went anyway, you’d have to live there for 6 months before your new state would have jurisdiction over custody and visitation. If your child’s father filed an emergency petition before 6 months was up, the judge could order you to return the kids to the state – so, yeah, not ideal. (And, in case you were wondering, the judge doesn’t really care what the expense to you is, or whether you have somewhere to live when you return – so it could put you in a really difficult position.)

Emergency hearings are NEVER a good thing, and they can make a terrible first impression on the judge. Still, in some ways, it’s one of the only ways forward.

I don’t recommend that you just move away willy nilly; in general, I think it’s a good idea to consult with an attorney before taking this course of action so that you can be sure to get up to date, specific advice tailored to your situation. I’m always hesitant to actually recommend it, but in some cases it can potentially work better than others. Still, best to get advised first – because once you leave, there’s no coming back, and it can have a potentially disastrous effect on your case!

What if he’s living with his new girlfriend or baby mama?

Baby mamas and baby daddies can make things especially complicated. If your child’s father is living with a new romantic interest, it may be worth mentioning to the judge, just to see whether it sways him (or her) in any particular way. But keep in mind that if YOU’RE living with a new baby daddy, you’ll fall under the same scrutiny – so, the pot really shouldn’t be calling the kettle black.
In general, I think it’s unwise to live with someone before marriage when you have a custody case pending. Will it hurt your case?

Maybe, maybe not – but no sense taking the risk, right? Especially if you’re shelling out thousands of dollars to an attorney, it’s probably a good idea to live as “morally” as possible, in case the judge happens to have a crazy conservative streak. (Look, I feel I need to say – it’s not that I think there’s a problem with living together before marriage. I literally do not care at all. It’s just that I think it’s unwise to do something like that while your case is pending without at least considering the possibility that it could cause harm to your case.)

If he is, though, by all means mention it, especially if you’re living in a pretty ideal situation. It’s not that you have to be a model for purity and virtue, but judges do often like to see parents at least not engaging in promiscuous behavior in full view of their children.
Moving with children is not easy. If you’re determined to do it, check out our free report on relocation cases for more information, and definitely plan to schedule a one on one consultation to discuss the merits and demerits of your particular case. You can schedule one with our office, if you choose, by giving us a call at 757-425-5200. Good luck!

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