The most important factor in a Virginia child custody relocation scenario is deciding if you can leave with your child, is if there is an existing court order in place. In Hampton Roads, Virginia, it is very common, particularly for military and Department of Defense employees, to move in an out of the region for work. While moving is never an easy feat, it can become a true nightmare when one parent is attempting to leave while the other parent is staying. Many primary caregivers believe they can leave the area with their child, no matter what the other parent says; for the most part this mindset is wrong.
Relocation When There Is NO Court Order
Until the court enters an order stating who has primary custody of a child, either parent may be the primary caregiver and have the child live with them. As such, if there is no court order, then either party may move out of the Hampton Roads area with the minor child.
Even if there is no court order, there is still hope that you may prevent the other parent from taking your child out of Hampton Roads. As soon as you discover that the other parent is relocating, go to your local Juvenile and Domestic Relations Court and file a petition for Custody and Visitation. After that, contact a local family law attorney, they will assist you in receiving a temporary order preventing the other parent from leaving with the child.
Relocation When There IS a Prior Court Order
Due to the Code of Virginia Section 20-124.5, if there is a prior Custody order in place, it is highly likely that the primary caregiver must give both the court and the other parent written notice of their intention to relocate at least thirty days before the planned move. That being said, the Virginia Code does allow exceptions to be made for good cause. Thus, you will need to review your order to determine if notice is required.
Relocation When There IS a Prior Court Order (Cont.)
Some people take the approach that it is better to ask for forgiveness rather than ask for permission. This is a grave mistake. If a party was to move outside of Hampton Roads, it could be considered a violation of the prior order and said party could face possible criminal charges.
If notice is required, the non-moving parent will typically petition for a new Custody order after they are given notice of the move. When determining any new custodial order, the Code of Virginia Section 20-124.3, requires the court to make its determination based on what is in the best interest of the child. Many primary custodians mistakenly believe that if the move benefits them, then the court will automatically determine that the move is in the best interest of the minor child as well.
Relocation cases are the toughest cases that primary caregivers will face. Typically, in Virginia, the courts do not like to allow the relocating party to leave with the child if that would substantially harm a strong relationship the child has with the other parent. The moving party will be required to show the court that the benefits of the move outweigh the harm caused by the strain on the parental relationship. Typically, if a parent is moving purely for a modest economic benefit, the court will not consider this benefit to the child substantial enough to justify altering custody. If you are considering a relocation out of the State/area, it is important that you contact a family law attorney to help determine how the section 20-124.5 factors apply to your situation.
Even if the court allows the child to leave the area, there will most likely be alterations to the original custody order. These usually include the non-custodial parent having multiple months of parental time over the summer. Additionally, the court may even require the parent that relocated to pay for the visitation transportation.
With that all being said, it is important to note that if the non-primary caregiver is willing to consent to the relocation prior to you giving notice, it’s a good idea to have a local attorney draft a proposed consent order that you may present the court, along with your petition for Custody. This way you can avoid the possibility of the other party changing their mind at a later date.
If you are considering a relocation away from the Hampton Roads area with a minor child, it is important that you contact one of the Attorneys at John W. Lee, PC prior to finalizing your moving plans. Additionally, if you receive notice that the other parent is moving, it is important that you contact an attorney ASAP and file your petition with the court.