Relocating Out-of-State and Child Custody
Often following a divorce or bad breakup one or both of the parties consider moving away. Maybe you want to live closer to family or receive an offer for a nicer job. Perhaps the cost of living is better across state lines. If you have minor children with your ex, however, you can’t simply pack up and ship out with the kids.
AGREEMENT BETWEEN YOU AND YOUR EX
The easiest way to move with your kids is to reach a mutual agreement with your ex. Regardless of whether you were married, where there is a court-ordered custody arrangement you and your ex can have the judge sign an agreed order permitting you to relocate with the children.
OBJECTING TO THE MOVE
You may be in a situation where you expect your ex to object to the relocation. If the objection occurs during divorce or child custody proceedings, then the issue will need to be resolved before the court will enter a divorce decree or final child custody order. Often this requires a trial. If a child custody order is already in place, then you will need to file a motion to modify the child custody order explaining why you want to relocate and how relocation is in your children’s best interests. Your ex will have an opportunity to respond to the motion. Then a hearing date will be set so a judge can decide whether you may move with your kids.
Virginia law requires the parent wishing to relocate with children to provide the other parent (and the court) with written notice at least 30 days prior to the move. The notice should include the children’s proposed future address. If the other parent objects to the move, the objecting parent must file a responsive pleading stating why relocation will be detrimental to the children and injurious to the parent-child relationship.
CHILD’S BEST INTERESTS
At a court hearing, a judge will determine whether relocating is in your children’s best interests. Although no bright line test exists for determining the best interests, in Virginia you are required to show that relocation will confer an independent benefit upon the children. This means that moving to be closer to your family or for financial reasons will be insufficient unless you can prove that the children will directly benefit from the change. After you have made your case, the judge will review the situation in light of a variety of factors including the children’s ages, physical health, parents’ age and physical health, the relationship of each parent with the children, propensity of each parent to actively participate in the children’s lives, and the children’s preferences, if appropriate. The judge will then either deny your request to relocate or approve of the move. A judge will be more likely to deny relocation if your kid(s) have a close relationship with your ex that will be difficult to maintain after the move. However, if your request is granted, it is important to work out an acceptable visitation schedule for your ex to spend time with the children and incorporate this into the court’s order.
Whether you are seeking to relocate or to block relocation, consult with an experienced attorney as early in the process as possible. The qualified team of family law attorneys at the DiPietro Family Law Group have years of experience representing both fathers and mothers in paternity, custody, visitation, child support and other family law matters.