Child Custody and Relocation in Virginia

In Virginia, if a custodial parent wants to relocate with a minor child, they must give advanced notice to the court and the other parent. If the other parent doesn't agree with the move, they can ask the court to deny the relocation or request a change in custody.

Relocation Basics

A custodial parent who wants to move with their minor child, or change the child's address, needs to tell the court and the other parent at least 30 days' in advance. If the other parent disagrees with the move, you will need to ask the court for approval.

Before a judge will approve a relocation, the parent proposing the change will need to demonstrate that moving is in the child's best interest by showing that there is a real advantage to the parent and that it is not harmful to the best interests of the child. You may need to call witnesses, show documents, or present any other evidence you believe will be helpful in showing the court that you have a sincere reason for moving.

In addition to considering your reasons, the court will look at a specific set of factors, called best interest factors, to determine if it will approve a move. After the court evaluates these factors, the judge may tell you their decision right away or may wait and send you a letter in the mail. Until you know the court's decision, you can't relocate.

The best interest factors include:

• the child's age and physical and mental condition of the child
• each parent's age and physical and mental condition
• the relationship between each parent and each child
• the child's needs, including considering the relationship the child has with siblings, peers, and extended family
• the role each parent has played and will play in the future, in the upbringing and care of the child
• the tendency of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent visitation with the child
• the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes
• the child's preference, if the court believes the child is mature enough to express a reasonable preference
• any history of family abuse or sexual abuse, and
• any other factors the court believes to be important.

What Happens if I Disagree With a Proposed Relocation?

If a non-custodial parent disagrees with a relocation, they may ask the court to modify their custody order. Before the court will consider this, the parent seeking a transfer of custody must prove there has been a change in circumstances since the entry of the last court order, and that a modification is in the child's best interest. The best interest factors are more important than a change in circumstances, so if the court is not convinced it will be best for the child to change custody, it will deny the request.

In one 1986 case, a custodial parent (mother) gave notice that she was going to relocate to another state with the children. The father disagreed, so he challenged the petition and asked the court to change custody. The father failed to show that a change in custody was in the children's best interest, and the court denied his petition. The mother remained the custodial parent and the court allowed her to move with the children. To make up for any lack of visitation caused by distance, the court ordered 8 weeks of liberal parenting time to the father.

Although the court prefers stability for children, there are some cases when a change in custody is necessary. In a 1994 case, the court initially awarded custody of a child to his mother. For the next several years, the parents had problems with parenting time exchanges and failed to communicate. Unexpectedly, the mother sent the father a letter telling him that she would be relocating outside the state "in the near future," which prompted the father to request a change in custody. The father presented evidence to the court showing that the child was happier and better able to relate to both parents when he lived with his dad. The mother argued this was untrue, but because she failed to follow court orders in the past, the court denied her petition to relocate and awarded custody to the father.

Relocation and change of custody cases are complicated. Not only do these situations involve changing residences and visitation schedules, you may also need to address modification of custody, which is difficult. If you want to relocate, or you object to a move, you should seek assistance from an experienced family law attorney.