A major concern with divorce is what happens to the children. Who gets custody and how is that decided? What about relocation? Can a non-custodial parent prevent a custodial parent from moving away with their child? The simplest answer: It depends. There are different types of custody, and the rules vary depending on the state.
What are the types of custody?
Custody in general is the control, maintenance and care of a child. Both parents are naturally presumed to have custody; however, this can change if the court is involved or if an agreement is reached by the parents. A judge views each case from the perspective of what is in the best interest of the child before deciding the type of custody that should be awarded:
- Joint physical custody: Both parents share control and physical care of the child but not necessarily equally.
- Joint legal custody: Both parents share responsibility for the control and authority of the child, but the child may primarily physically reside with one parent.
- Sole legal custody: One parent has the primary responsibility for the major decisions regarding the child (ie: schooling, healthcare, etc.). This parent is referred to as the custodial parent.
Can a custodial parent relocate with the child?
In Virginia, it is getting harder and harder for custodial parents to relocate with their child. That being said, the courts will allow the relocation if the custodial parent can prove the relocation is in the child’s best interest. A parent can relocate – a court can’t control that – but it can prohibit a child from being moved.
Does the other parent need to be notified before relocating?
Laws on relocation vary from state to state but most states require each parent to notify the other parent and the court, in writing, at least 30 days before moving residences. This notice should include information such as the proposed future address, date of relocation and telephone number, if available.
What factors do courts consider in custody relocation cases?
The court will consider factors such as the child’ s relationship with each parent, the child’s stability at home and school, and the economic factors present. It is not sufficient that a parent argues that the move is in the best interest of the parent seeking to move—the focus is what is best for the child. While relocation that provides a parent with a job has benefits for the child, those benefits are not the sole or primary consideration in evaluating the impact on the child. Each relocation situation is factually different and seeking legal advice prior to relocating with a child is prudent.
Commonly, when courts rule in favor of relocation or if the non-custodial parent agrees to relocation, they are granted the larger blocks of vacation time during a school year and a greater portion of the summer.
Consult the professionals.
Whether you are a custodial parent looking to relocate, or you are a non-custodial parent worried about your ex relocating with your child, it is important to consult a family law attorney to understand what the best course of action is for your situation.
Contact Alan Plevy at abplevy@smolenplevy.com or Kyung (Kathryn) Dickerson at kndickerson@smolenplevy.com.
About the Authors
Alan Plevy
Alan Plevy is a recognized force in family law, mediation and litigation, with more than 40 years as one of the most experienced divorce lawyers in Virginia. Mr. Plevy is known for being a tenacious litigator and negotiator who is zealously devoted to his clients. A top legal publication, Virginia Lawyer Weekly, noted Mr. Plevy’s impact on the law when it named two cases he litigated among its Top Five Landmark Family Law Cases in Virginia. Those two cases, which date back to the 1980s, are still regularly cited by attorneys and courts.
Kyung (Kathryn) Dickerson
Kyung (Kathryn) Dickerson is a principal at SmolenPlevy in Vienna, Virginia. She is a graduate of the University of Virginia and George Mason University School of Law, where she served on the Board of Editors for the Journal of International Legal Studies. Ms. Dickerson is also presently General Counsel for the Asian Pacific American Bar Association of Virginia and has served as President of the organization and on its Board of Directors. She has also served on the Board of Directors of the Virginia Women Attorneys Association and served as its President. She has served on numerous committees of the Fairfax Bar Association and as President of its Young Lawyers Section and as Co-Chair of the Revenue Development Committee.
