Husband and Wife married ten years ago. They purchased a home in a Northern Virginia neighborhood and lived in that home the entirety of their marriage. They are both employed in good jobs. They have two children that are attending a public elementary school in their neighborhood. Unfortunately, their marriage does not work and the parties divorce. In the midst of the divorce, Wife is offered a job in New York. She will be paid significantly more. Her family also lives nearby her new job in New York and is able help out with childcare. Not surprisingly, she wants to relocate and bring the children with her.
Can She Move out of Virginia with the Children?
This is a difficult question that does not have an easy answer. It is expensive to live in Northern Virginia. When there are no longer two incomes supporting a household, it is not unusual for one parent to want to leave the area with their children. When the other parent does not wish to relocate, the Court is left to determine whether or not a child may make that move with their parent.
What is the Best Interest of the Child?
When determining whether or not a parent may relocate with a child, the Court considers what is in the best interest of that child. The factors the Court uses to determine the best interest of a child are outlined in the Virginia Code. The factors the Court considers in a relocation case are the same that they consider in any custody and visitation matter; however, a relocation case is unique because a Court may take other special circumstances into consideration.
Special Circumstances for Best Interest of the Child
These special circumstances can include financial, educational and/or family considerations. For example, why is a parent seeking to relocate? Are they in the military? Will their job result in a better standard of living for the family? Additionally, does a child have any special educational considerations that are being addressed by their current school? Can a school in the new location address those considerations in the same manner? In a better manner? Is there family in the area that the child will have an opportunity to be close to? Is the child close with the parent that is not seeking to relocate? These are all specialized circumstances a Court may consider when determining whether or not it is in the best interest of a child to relocate.
Preparing for Your Relocation Case in Virginia
It is important for any parent looking to relocate to be prepared to answer the above questions. They should be prepared to paint a picture of what their child’s life would look like in their new home. In order to answer these questions, the relocating parent may need to hire an expert witness. An expert may be vital to compare school systems, address reasons why a parent may need to relocate for their profession, or to discuss from a mental health perspective why this move would be in the child’s best interest. Simply because a move may be good for a parent’s career or make sense because of financial circumstances, does not necessarily mean the Court will agree a move is in the best interest of a child. While the Court cannot control where you live, the Court can control whether or not a child relocates with you.
Notice of Intent to Relocate in Virginia
Sometimes a relocation will not happen during a divorce, but may come up after a custody and visitation order has been entered. Once a custody and visitation order is entered, Virginia requires each party who wishes to relocate their residence to give a thirty day advance written notice of any such intended relocation or change in address to the other party and to the Court. This is required because it gives the non-relocating parent an opportunity to object to the move. This typically occurs when a parent is seeking to relocate out of state or somewhere that makes the current custody and visitation schedule impossible to maintain.
Relocation Hearing for Child Custody
At this point, a hearing will likely be scheduled to determine whether or not a relocation of the child may occur. During this hearing, the parent wishing to relocate will have to show that there has been a material change in circumstances that warrants a modification of the custody and visitation arrangement. In order to determine this, the Court examines the factors as outlined above.
When evaluating whether or not a relocation is in the best interest of a child, the Court may also consider whether or not a relocation will substantially harm the relationship between the child and the non-relocating parent. It is likely that when one parent relocates, the parent staying behind will not see the child as often as before. Is the parent that wishes to relocate with the child willing and able to help maintain the relationship between the child and the parent staying behind? While it is inevitable that the relationship between the child and non-relocating parent will change, the Court needs to know whether or not the relationship will be substantially harmed as a result of that move.
Overseas Relocation and Child Custody in Virginia
If a parent wishes to move overseas with a child, the Court’s inquiry becomes even more complicated. There may be concerns about whether or not a Virginia order is enforceable in another country and whether or not there are legal remedies available to the non-relocating parent in the event the moving parent refuses to return the child.
Advice on Custody and Relocation Laws in Virginia
The bottom line is that each relocation case is different and very fact specific. The attorneys at Cooper Ginsberg Gray are experienced in relocation cases and can assist you in navigating this process. Visit our website at www.cgglawyers.com or call us at (703) 934-1480.