You Can't Take the Kids and Run - Relocation and Child Custody

As always, before reading this blog post please review my disclaimer by following the link above or by clicking on this link.  As always, the legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

The reality is that, unless you are a particularly stubborn person, or a person who managed to find, and could afford, your dream house right out of college, almost all of us will move during our adult lives.  In fact, we may move frequently.  For most people, this is not a big deal - sure, it may be inconvenient, but a few days of packing, a day or two of actual moving, a few days of unpacking and it’s done.  For people with children who do not live with the child’s other parents, however, it can quickly devolve into a nightmare.

There has long been recognized in the United States a right to travel and move freely within the United States - not only within your own state, but from state to state.  This is, in fact, considered a “fundamental” constitutional right.  In other words, a constitutional right that is so basic, it cannot be infringed upon by the government without the government meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein the government must prove that its actions are “narrowly tailored” (as in, this is the least restrictive approach possible) to resolve a “compelling government interest.”  So, if you have custody of your child, the other parent absolutely cannot prevent you from moving.  But, the other parent can prevent you from bringing your child with you, and therein lies the problem.

 
Relocation cases in the child custody context are difficult issues.  For one, they inherently affect the custodial parent far more than the non-custodial parent.  A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse.  It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right.  In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.

Relocation Cases - Burden of Proof, etc.
 

A typical relocation case begins with the custodial parent giving the court and the non-custodial parent the mandatory 30 days’ advance notice of the relocation.  If the non-custodial parent does nothing, the relocation happens, and any new case involving custody and visitation will treat the relocation as given and the non-custodial parent as essentially having forfeited his or her right to object to the relocation.  When a disputed relocation case arises, it happens when the non-custodial parent during that 30 day window files a motion to enjoin the relocation.  That’s where the “fun” starts.

Despite the fact that the case is initiated with a motion filed by the non-custodial parent, the burden of proof in a relocation case is actually on the custodial/relocating parent (as a note, I will continue to treat the relocating parent and custodial parent as interchangeable in this case because it is practically unheard of for there to be a contested relocation involving the non-custodial parent moving - at worst, there will just be a motion to alter that parent’s visitation). 

Of course, the question is “burden to prove what?”  The answer to that question, unfortunately, is that the Virginia courts still have not sorted this out, and unlike many other states, the Virginia legislature has not passed a law giving the courts guidelines for determining relocation rights.  Instead, we have a mishmash of rules.  The custodial parent must prove that the non-custodial parent’s relationship with the child will not be harmed by the relocation.  However, if the custodial parent fails to prove that, but the custodial parent succeeds in proving that the relocation would be in the child’s best interest anyways, then the relocation may be approved regardless.  Further, if the custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health, etc.) remain at the custodial parent’s current location and cannot move to a location that is closer than the proposed relocation point, then the court must do a whole different analysis of whether the child’s best interest is custody with the custodial parent at the new location or with the non-custodial parent.

 
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with.  The general rule (as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent will get the same amount of time with the child as he or she has now (even if that means fewer weekend visits, but more weeks in the summer or some similar re-arranging of the schedule), then the relocation will probably be approved.  If you cannot show that, the relocation probably will not be approved.  You should also be prepared to take on the burden of the additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.
My Relocation was Denied - Now What?

If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child.  As discussed above, the non-custodial parent cannot stop you from moving.  So, you would have several options.  If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved.  You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success).  You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail).  Those are pretty much your only options if your relocation is denied.

My Relocation was Approved, But Visitation Isn't Working
 

If your relocation was approved but it becomes clear that the visitation arrangements you made to ensure the non-custodial parent got the same amount of time with the child isn’t working, then you can file a motion to modify visitation.  This is because the fact that visitation arrangements do not work as planned is usually considered a “material change in circumstances” that warrants re-consideration.

 
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time.  Just be prepared that a hearing like this can go either way.  They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child.  Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all.  Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.

Conclusion

Relocation is one of the toughest issues there is involving custody.  Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it.  If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm.  While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them.  Your initial consultation will be free for up to half an hour!