Navigating Custody & Relocation Under Virginia Law

As a parent, few things are more important than doing whatever it takes to give your child the best chance in life. Sometimes, that means moving to a different state. But how does that work if you’re planning to relocate and your co-parent doesn’t agree? Or, on the other side of the fence, how will Virginia law support you if your co-parent is the one moving?

Family law for relocation cases is a tricky area, but we’ll briefly run through what you need to know and how to approach the situation correctly, including appeals and mediation.

How does moving with a child affect custody and visitation under the law?

Legally, relocation is defined as a change in address. If you have a custody order in place, Virginia laws require 30 days’ notice before moving with your child, which is legally defined as changing your address.

When relocating out of state, there are also pieces of national legislation such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to consider. However, there are exceptions, as you’ll soon see.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Under the UCCJEA, a custody order issued in any US state applies within all other states, ensuring parents can cross the borders with their children without running into trouble. After all, without this rule in place, families living close to borders wouldn’t even have the freedom to move a few miles down the road if it meant entering another state.

There’s just one state this doesn’t apply to, Massachusetts.

But even if you don’t live in Massachusetts, there are a few small restrictions and caveats that could make your move a little more complex. This depends on the type of custody order you have, alongside the specific rules enforced in Virginia.

Check your custody order

Assuming you followed the correct process and put a legal custody order in place when you separated from your partner, you should refer to this agreement before you make any detailed plans about your move. The order often specifies how you should handle the situation — such as the need to obtain permission from the other parent or maintain within a certain distance.

It’s important to ensure you stick to whatever the prior agreement is. Or, if your plans don’t match up (which may be the case if you need to move slightly further than the distance specified), you’ll need to change the agreement. Of course, this must be a mutual decision.

If and when you’ve sorted this out, you can proceed to look after the Virginia-specific laws.

Virginia laws

As well as following the rules outlined in the UCCJEA, Virginia laws require the parent planning on relocating to give at least 30 days of notice to the other parent. In the case of shared custody, you also need to show that the relocation is in the best interests of the child. If your case for moving isn’t deemed to be strong enough, the Virginia courts could prevent you from relocating with your child (leaving you with the choice of either going alone or staying within the state).

The court’s process for figuring out whether a move is in the interests of a child is complex and nuanced. However, they will consider factors related to both the parent (the level of involvement of each parent), the child (their mental health, support system outside of the parents), and whether the move will bring about tangible changes of circumstance. For instance, moving could result in a higher quality of living if the parent could make enough money to send their child to a better school.

Note that, even if one person has sole custody, it doesn’t mean they can automatically proceed with their relocation — they still need to go through the same process.

The court’s decision will determine who the child lives with. Unfortunately, as the process for deciding this is incredibly subjective, gathering the right information to make your case is a stressful process.

What rights does the noncustodial parent have?

Given the UCCJEA allows some levels of freedom and Virginia laws only require parents to give notice, it might seem at first that co-parents are put in a vulnerable position. However, they do have the right to appeal after notice of relocation is given. You’ll have six months to file a Motion to Amend Custody and Visitation after receiving notice of the other parent moving — and the sooner you do so, the better.

Plus, if the best interest test rules against you, it’s likely the courts will modify your custody order to require longer vacation visits, even if you don’t have joint custody anymore.

Even if you don’t have a court order, you can file for custody after the parent moves. Since a child must be a resident in a state for at least six months before their new locality has jurisdiction, it’s often very hard in practice for one parent to take a child away from the other parent.

Also, if your co-parent fails to give you the 30-day notice required by Virginia law, they’re breaking the law and you can take action against them. This is classed as “parental kidnapping,” and you can call the police or try to contact them through their employer. In some cases, parental kidnapping can lead to jail time or other serious consequences.

The role of mediation

The “best interest” test is set up in a way that results in one parent “winning” and the other “losing,” setting both parties against each other. This isn’t good for you or your child(ren), and it’s incredibly difficult to go through — especially given the subjective and obtuse nature of the entire process.

A better alternative is mediation, which involves both co-parents coming together to reach an agreement in the presence of an impartial mediator, who facilitates the conversation. Both individuals will have the chance to get their plans and fears heard in a neutral environment and to share their ideas about how to protect the best interests of the child.

Ideally, this precludes the need for a “best-interest” test in the first place, because you can simply decide between yourself what to do without resorting to the courts to get involved.

Make the best of a bad situation

Given the difficulty and emotional turmoil involved in relocating and not knowing if you could lose your child, your best bet is often to reach an arrangement with your co-parent directly. Mediation makes this possible in a safe, accessible environment.

If you’re wondering how to get started, consider working with Donita King. She’s an experienced lawyer-mediator with experience helping divorced or separated couples that need to co-parent through challenging circumstances, such as one person moving out of state. To find out more about how she can help you, contact her law office today.

Donita King

Ms. King is a member of the Virginia, Pennsylvania, and D.C. State Bars. She also serves as a University of Richmond School of Law Adjunct Professor of Mediation. She previously served on the Virginia Bar Association Joint ADR Council (2015 Chair), and served for several years on the Governor of Virginia’s Interagency Dispute Resolution Council. Ms. King currently serves as a board member of the Virginia State Bar Disciplinary Board by appointment of the Virginia Supreme Court and has been active with the Hispanic Chamber of Commerce, Hispanic Women in Business as well. Se habla espanol.

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