Can The Primary Custodian of Child Relocate?

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This is one of the most commonly litigated issues that often arises after a custody determination. Whether it is to accept a new job offer, avoid the expensive cost of living in Northern Virginia, move closer to family members who live outside the area, or even to start a new life, it is not uncommon for a parent to seek to relocate after a divorce or after being awarded custody. Whatever the reason, when the parent’s move is to a location that is not in close proximity to the other parent, the parenting schedules in effect are bound to be impacted.

Contingencies in Custody Agreement

In some situations, parents account for this contingency in the custody agreement and determine whether the moving parent would be required to obtain consent prior to relocating outside of the area. However, when custody is litigated or in cases where the parents’ agreement is ambiguous, unenforceable, or silent on the issue of relocation, the moving parent may need to overcome some hurdles if the other parent objects to the relocation. Often, relocation is a source of contention between parents. There is usually little room for compromise when the question is whether or not a parent may take the children to a location where frequent personal contact between the other parent and the children is impractical.

When courts are faced with this issue, there is typically one parent seeking to relocate with the children and the other parent seeking to stop the relocation and/or to modify custody. Since the court is asked to modify custody or at least visitation, there needs to be a material change in circumstances. In relocation cases, the relocation itself is often considered a material change in circumstances although that is not always the case. In addition to finding a material change in circumstances, the court must also find that the change in circumstances warrants a modification, which would be in the best interests of the child.

Best Interests of Child

As is the case in most matters that involve children, the court’s ultimate concern is the best interests of the child –not the interests of the parent wishing to relocate or the interests of the parent objecting to relocation. Therefore, even if the move would be significantly advantageous to the relocating parent, unless the court finds that it is in the best interests of the children, it will not allow it. Likewise, even if relocation would greatly inconvenience the objecting parent, if the court finds that the best interests of the children would be served by it, it will not stop the relocation. It is important to note that the court cannot prevent the parent from relocating –the only thing that can be stopped is the relocation of the children if it is not in their best interests.

No Statute in Virginia

There is no statute in Virginia that specifically governs relocation other than Section 20-124.5, which requires parents to give 30 days advance written notice to the Court and the other parent of any change of address. There is also no clear trend in the case law on relocation as each case turns on its peculiar facts. However, some of the factors that courts have considered include the economic benefits gained from relocating, the role of each parent in the children’s lives prior to relocation, the effect of relocation on the relationship between the other parent and the children, the feasibility of continued –albeit less frequent- personal contact between the children and the other parent, and the educational and cultural advantages of the new location to the children as compared to their current location. A

dditionally, courts have considered the children’s ties to their current location and local family and peers as well as their adjustment to the current educational and social activities. When the children’s relocation is permitted, the court often modifies the visitation schedule to provide the other parent less frequent but longer visits. So, if the other parent had visitation every other weekend and on various weekdays, this schedule would likely change after the relocation, so that the children spend most, if not all, holidays and a longer summer vacation with the other parent. Additionally, the court may allocate the transportation costs associated with the longer travel time and/or adjust child support accordingly.

Relocation cases are more frequently litigated than other cases, and court decisions vary greatly, depending on the facts of each case. The attorneys at ShounBach are experienced and can advise you whether you are the relocating parent or the parent seeking to stop the relocation and/or modify custody. If you are seeking to prevent the relocation of your children with the other parent, or if you are contemplating relocating with the children yourself, don’t hesitate to contact one of our skilled lawyers at ShounBach.

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Written By ShounBach

Since 1975, ShounBach has served the Northern Virginia community. Our team brings over 200 years of combined legal experience and has grown to be one of Virginia’s largest family and estate law firms.

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