Child Custody and Relocation in Virginia

Many people move frequently throughout their lives—for work (or a spouse's job), to be closer to extended family, or simply to take advantage of better opportunities in a new place. But when divorced parents move, it can upset their existing custody arrangements. After all, if the parents now live far from each other, it can be difficult to follow a parenting schedule that gives both of them regular time with their kids. If you're a Virginia parent faced with this situation, you should know about the state's relocation requirements and how judges make decisions in move-away cases.

Overview of Child Custody and Modifications in Virginia

There are two types of custody: legal custody and physical custody. Legal custody is a parent's authority to make important decisions in a child's life, like health care, education, and religious upbringing. Physical custody deals with where a child lives—that is, which parent has the child most of the time. Parents may share one or both types of custody. Even when one parent has sole or primary physical custody, the other parent will almost always have visitation rights.

Parents have the option of creating their own custody agreement. But if they can't agree, a judge will have to decide what's best for the child, based on all of the relevant circumstances in the case.

Either parent may request a change in the current custody or visitation orders. Unless they've agreed on a new parenting plan, the parent who wants a modification must prove that:

• there's been a material change in circumstances since the existing orders were issued, and
• the modification would be in the child's best interests, based on the same considerations that go into an original custody decision.

(Va. Code §§ 20-108, 20-124.2(B) (2024); Keel v. Keel, 303 S.E.2d 917 (Va. 1983).)

Learn more about how child custody works in Virginia, including the factors that judges must consider when they're deciding what's best for children.

Virginia's Notice Requirements Before a Parent's Move

Under Virginia law, any custody or visitation order must include a requirement that a parent give the other parent (and the court) 30 days' advance notice before relocating, unless a judge has a good reason for waiving that requirement. The law doesn't spell out any specific requirements for how to give this notice, but the judge may include those requirements in the custody order.

Unlike similar provisions in other states, Virginia's notice requirement doesn't apply only to custodial parents or long-distance moves. Both parents must give advance notice before changing their address. (Va. Code § 124.5 (2024).)

What to Do When You Oppose the Other Parent's Move

Virginia's 30-day notice requirement gives parents a short window of time to take legal action if they oppose a co-parent's relocation or want to change the current custody and visitation orders. In the most common scenario, when a custodial parent plans to move with the children, the noncustodial parent may file a motion asking the court to prohibit the move or modify custody—usually by awarding primary physical custody to the stay-behind parent.

A noncustodial parent's planned move might also lead to a modification request when it would make the existing parenting schedule unworkable. For instance, if the children are currently spending a few nights a week with the noncustodial parent, it would be hard to keep that up if the parents are living an hour or more from each other. Either parent may want to change the existing parenting schedule so the kids will have less frequent but longer visits with the noncustodial parent, such as during summer vacation and other school breaks.

Agreements on Custody Changes After a Relocation

Parents may work out an agreement on how to change their existing custody and visitation orders in light of one parent's move. They'll need to submit their agreement to the court along with a modification motion, but a judge will usually approve the agreement unless it doesn't appear to be in the children's best interests.

How Do Virginia Judges Decide Relocation Cases?

Without an agreement on any custody or visitation changes after a parent's move, a judge will have to hear the evidence and decide whether to grant a modification motion. The same criteria for all custody modifications apply to relocation cases: The parent who files the motion must prove that there's been a material change in circumstances and that the requested modification would be in the child's best interests.

Does a Relocation Qualify as a Change in Circumstances?

A parent's planned move will probably qualify as a material change of circumstances when it's far enough away to have a substantial effect on the children and the current custody arrangements. A judge may also find that a parent's need to move qualifies as a change in circumstances—for instance, when a parent can no longer afford rent in the same city, or a parent has lost a job and can only find another one elsewhere.

Is a Relocation or Custody Modification in the Child's Best Interests?

A change in circumstances isn't enough on its own to warrant a custody modification based on a parent's relocation. The judge will have to decide what would be in the children's best interests in light of all the relevant factors.

One of those "best interest" factors is the child's relationship with each parent. That means the judge must consider how relocation with the custodial parent will affect the noncustodial parent's ability to stay involved in the child's life and maintain their relationship. Still, that doesn't necessarily mean a judge won't approve the relocation just because the child will be living farther away from the noncustodial parent. The question is whether their relationship would be substantially impaired—and whether, in light of all the circumstances, the child will be better off moving with the custodial parent. (Wheeler v. Wheeler, 591 S.E.2d 698 (Va. Ct. App. 2004).)

It's important to point out that judges can't prohibit parents from moving—that's their constitutional right. But a judge may order that custody will change if a custodial parent moves with a child. The parent may then decide to forego the planned move to avoid that result.

Resources and Help With Relocation Requests

If you're not sure about any specific requirements for advance notice of a relocation—such as what information needs to be included—check your existing custody orders (which may be included in your divorce decree).

You can download the court-approved form for a motion to amend custody from the Virginia Courts Self-Help site for custody, visitation, and child support forms. And if you're having trouble agreeing with your co-parent about a proposed relocation, custody mediation could help you resolve your differences. (In some Virginia counties, you might be required to participate in mediation if you haven't agreed by the time one parent files a motion to modify custody.)

Without an agreement, you should strongly consider speaking with a lawyer as soon as possible after learning that your co-parent is moving. Contested relocation cases can be complicated and difficult to navigate. An experienced, local family law attorney can explain how Virginia law applies to your situation and the kind of evidence you'll need to win your case.