It is not uncommon for one or both parents to relocate after a divorce. Whether for a new job or a fresh start, there are many reasons why you may find yourself in a situation where you must move to a new area or state. However, if you and your former spouse share children, your relocation will be much more complicated.
If you have primary custody of your child, you cannot just up and move. Both the child's other parent and the courts need to be notified of the move. Typically, you are required to serve these notifications at least 30 days before the proposed relocation. If your former spouse does not agree with the relocation, they can contest it. When this happens, you will need to get court approval before you can move your children.
Is the Move in the Child's Best Interest?
When a move is contested, one of the court's main concerns is whether the move is in the child's best interest. It will be the responsibility of the parent seeking the move to demonstrate to the court that this move is in service of the child's interests and is not harmful.
In Virginia, several factors are considered when looking at the child's best interests. These factors are outlined in the Code of Virginia. Below is a look at a few of the things the courts will consider when making a determination in your relocation case.
Best interest factors include:
- The age of the child
- The physical and mental condition of the child
- The age and physical and mental condition of both parents
- Existing relationships between each parent and the child
- The role each parent plays in the child's upbringing and their expected future role
- Other important relationships of the child, such as siblings, peers, and other family members
- The reasonable preference of the child if appropriate
The courts also look at each parent's commitment to fostering a close and continuing relationship with their child and their propensity to support their child's relationship with their other parent. Similarly, the courts may also consider both parents' ability and tendency to cooperate and resolve disputes regarding the child.
What Are Your Reasons for Moving?
In addition to determining if the move is in the child's best interest, the courts will also want to know your reasons for moving. Often, parents move specifically to benefit their children. For example, you may be relocating for a new, higher paying job to better provide for your child. Other parents relocate to get their children access to better school districts or improved housing. In other cases, a move can bring a child closer to extended family who provide childcare and additional support for the child.
However, it is important to remember that the ultimate deciding factor is whether the move benefits the child. While relocation may be in your best interests, if the courts see the move as potentially or likely harmful to the child, they will not approve it. For example, if the move will significantly damage your child’s relationship with their other parent, the courts may not support the move.
Do I Need an Attorney?
If you are planning to relocate with your child, you absolutely should speak with a lawyer. Disputes over relocation with children are very common, and you will want an attorney by your side in court. Additionally, as you prepare to make your case, you will likely need to collect a range of documents and may even need witnesses and other evidence to make your case. A skilled lawyer familiar with handling these types of custody cases can help with all your paperwork and empower you to put your best foot forward.
Drafting New Custody & Support Agreements
Relocation almost always necessitates redrafting parenting plans, visitation schedules, custody agreements, and support agreements. Depending on the nature of the move, the non-custodial parent may be granted extended time with the child during the summer or may be given more holidays to ensure that their relationship with the child continues positively. This is especially common when the custodial parent proposes a move out of the area, state, or region.
When negotiating new custody agreements or parenting plans, you should always have a lawyer represent you. While you and your former partner may agree on terms, the courts may reject them if the new agreements are not handled correctly. An attorney can use their knowledge and experience to help you develop creative solutions to your disputes and make sure that your parental rights are protected.
I Am the Non-Custodial Parent, and I Do Not Approve of the Relocation
As a non-custodial parent, you may feel frustrated and powerless when your child's other parent comes to you with their plan to move away with your child. Indeed, this can be a scary prospect, as it can potentially threaten your relationship with your children. However, you do have the option to contest the move with the courts. Reach out to a trusted lawyer, like ours at Malinowski Hubbard, to discuss your case. With the help of an attorney, you may be able to either block the relocation or come up with a suitable compromise.
Read our blog to learn more about how relocation can affect child custody.