Child Custody & Relocation: Can my spouse move to another state with our child?

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You may be in the process of separating when your spouse announces that he or she intends to move to another state – with your children. Perhaps there is no advance warning and your spouse simply takes the children and moves, leaving you to find out after the fact. Or, it could be that you have a custody and visitation order in place, but now you are considering taking a new position at work with higher pay, but in another state. What happens now?

If There is No Order in Place

Without a court order directing otherwise, there really is nothing preventing either parent from picking up and moving with a child. If you think about it, this makes sense. The court really does not have jurisdiction to tell families how to parent unless and until a petition or request to determine custody or visitation is filed with the court. Therefore, absent such proceedings, the court does not have the ability to become involved in matters relating to custody and visitation. As a result, if there is no order in place or court proceeding pending, and one parent moves with the child against the other parent’s wishes, then immediately filing a custody petition and initiating a court proceeding is often the best first step in addressing the problem.

When There is A Court Order Addressing Custody and Visitation

When there is a court order addressing custody and visitation in place before relocation becomes an issue, there are several things at play.

First, pursuant to Virginia Code Section 20-124.5, every Virginia custody and visitation order must contain a provision that requires each parent to give at least 30 days advance notice of any intended relocation. As a result, advance notice of any move (with or without the child) must be given to the other parent. The concept here is that this gives the parent receiving notification to take action, as appropriate, to address the relocation. In some cases this can mean seeking a preliminary injunction against relocating the child until a full trial on the issue of relocation can be held.

Ultimately, the issue in a relocation trial breaks down this way. Parents are free to move as they wish. The question for the court to decide is: if one parent is going to relocate, how does the custodial arrangement need to be modified in light of the relocation? Like any other custody and visitation proceeding, this question is answered by looking at the child’s best interests.

An important factor for the court to look at is how the proposed relocation would affect the relationship between the child and the non-relocating parent.If contact between the non-relocating parent and the child would not be significantly affected by the move (for example there would be ways to construct a new visitation schedule that could largely maintain contact / the relationship between that parent and the child) – then the court may be inclined to permit the relocation. On the other hand, in cases where the relocation would present a substantial disruption of the relationship between the non-relocating and child, the court may be more reluctant to permit the child’s relocation. If this is the case, the court might possibly look into the reasons for the relocation (i.e. is the parent being transferred because of employment concerns, or merely looking for a ‘change of scenery’) to help make a determination.

These are just a few factors relating to how a court considers a potential relocation. If relocation is a possible issue in your case, it is always best to seek advice from an experienced attorney on how best to deal with the situation.

Parental Kidnapping

In certain cases where there is a court order in place that specifies the times that each parent should have a child in his or her care, and a parent takes the child in violation of the provisions of that order, this can be referred to as “parental kidnapping.” Congress passed the Parental Kidnapping Prevention Act ( 28 U.S.C. 1738, et. seq.) to address issues such as this. The PKPA does several things.

First, it requires each state to give full faith and credit to custody determinations of another state. This alleviates issues where, for example, Virginia issues a custody order, then a parent take the child to another state that might choose to disregard the order. Likewise, Virginia (and every other state) must recognize custody determinations from other states. Further, it prevents courts from establishing jurisdiction over custody matters when another state has already done so, thus preventing “forum shopping” or “judge shopping” by litigants.

Because parental kidnapping is a serious issue that involves a complicated interplay of various laws, and major concerns about child welfare, it may sometimes be necessary to involve law enforcement. It is also advisable to retain competent legal counsel as soon as possible to help you navigate the process.