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Got Custody Questions?

Exploring Important Legal Issues

At a coffee shop, I overheard a mom talking on her cell phone. She was lamenting her single-mom status and all the responsibilities she faced on a daily basis, which did sound more than a bit overwhelming. At one point, she exclaimed, “There’s NO way the courts would let me do that! Once you are divorced and share custody, you CANNOT move out of the area!”

Now, let’s be clear here. The courts have a strong degree of control over what you do with your children post-divorce, and if you and your ex-spouse share custody, the courts will likely be involved in any dispute as to a change in the custody arrangement. However – and this is a big however – relocating to a new town within or outside of Virginia, is not patently prohibited. In other words, there are situations in which a move may be approved by the court.

Let’s back up a tad, first. There are two types of custody, physical and legal. Physical custody generally refers to where a child lives, and legal custody refers to making major decisions on behalf of the child, such as medical care or where the child will attend school. Both legal and physical custody may be joint (shared) or sole (awarded to one parent). In Virginia, courts look to the best interests of the child in determining custody, considering the following: age; physical and mental health of the child and the parents; the relationship between the child and the parents; a parent’s willingness to foster The relationship between the child and the other parent; and the role each parent has played in the child’s upbringing – among other factors.

Let’s assume you’ve already gone to court and have a custody order in place. The order should explain what type of custody each parent has, and it will often address the issue of relocation as well. Relocating is generally considered a “change in circumstances,” which means that court approval is required. Moving without Advanced court approval can be a violation of the order, resulting in contempt of court.

Additionally, a parent who moves without prior consent may be subject to felony kidnapping charges. The custody of children is serious business, and carefully adhering to the court’s rules is necessary.

Once a parent wishing to move appeals to the court for approval, two main considerations come into play: (1) how the move would affect the child’s relationship with the other parent, and (2) the reasons for the proposed move. If the non-moving parent generally sees the child every weekend, and a move would drastically impair that contact or make it practically impossible, the court would likely consider that as a factor against approval. On the other hand, if the child only sees the other parent twice a year for three weeks, and the move would not affect that contact, then that factor might point to approval of the move. Reasons for the move also come into play, with economic stability, contact with extended family, and job opportunity often determinative. Most importantly, the parent seeking to relocate has the burden of proving that the move will be in the best interests of the child.

If a move is approved by the court, a new custody order is often required, which will then dictate how any future move requests are to be handled. Whether you are a parent wishing to move or one seeking to prevent your co-parent from relocating with your child, it’s crucial to understand that failure to adhere to court rules can land you in very serious trouble. Consulting with an attorney can help protect your rights and the rights of your child.

Kelly Hall, Esq., is a full-time mom and part-time attorney. Through Legal Ease in RFM, she contributed articles about family law, legislation, and other legal issues for four years until she moved out of the area with her family in 2014.
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