Relocation Litigation and the Application of the "Best Interests of the Child" Standard - February 2015

by Alysha Allen

Some of the most contentious child custody litigation involves the fight over whether a parent may relocate with a child.

The Code of Virginia does not specifically address relocation of a custodial parent. As with any Virginia custody litigation, the paramount concern in relocation cases is the best interests of the child. Before a court permits a custodial parent to relocate with a child, it must determine that the relocation is in the child’s best interests. In determining the best interests of a child in any Virginia custody or visitation proceeding, a court must consider ten statutory factors: 

1.  The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;  

2.  The age and physical and mental condition of each parent;  

3.  The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;  

4.  The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;  

5.  The role that each parent has played and will play in the future, in the upbringing and care of the child; 

6.  The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;  

7.  The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;  

8.  The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;  

9.  Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and 

10.  Such other factors as the court deems necessary and proper to the determination.

Virginia Code § 20-124.3. A court cannot prohibit a parent from relocating. A court can, however, prohibit a parent from relocating with the child and/or transfer custody to the non-relocating parent. Thus, the parent seeking relocation should tailor his or her evidence to support not only the finding that it is in the child’s best interest to remain in his or her custody, but also that it is in the child’s best interest to relocate with that parent. Likewise, the parent opposing relocation should demonstrate that the relocation is contrary to the child’s best interests and that, should the custodial parent relocate anyway, it is in the child’s best interests that custody be transferred.   

Each relocation decision is fact specific. Virginia case law guides us through the application of the ‘best interests of the child’ standard in relocation litigation, from which a few general principles can be gleaned.   

For instance, Virginia courts recognize that a parent’s relationship with his or her child will be impacted if that child moves some distance away, but that alone cannot be the sole basis for denying a child’s relocation unless there is specific evidence that the benefits of the relationship cannot be substantially maintained if the child is moved away from the non-custodial parent. For example, a Virginia trial court found that the benefits of the relationship between father and children could not be “substantially maintained” if the children relocated to Massachusetts with their mother because father’s immigration status would affect his ability to visit with the children, the children currently lived only half a mile from their father, and the mother had a history of inflexibility with visitation and of not supporting the children’s relationship with their father.   

Also, a relocation which provides a better economic or more stable environment for the custodial parent and child is typically viewed favorably by the court. However, a court may consider a benefit to the parent from the relocation only if the move independently benefits the child. As a practical matter, courts have recognized that the financial or other advantages accruing to a custodial parent from the relocation oftentimes inure to the benefit of a child. For example, a court found that relocation to Pennsylvania independently benefitted the children where mother’s income in Virginia was reduced due to the economy, she lacked a reliable car, was unable to pay her bills, was facing eviction from their home, and the child’s father was not consistently paying child support. As a result of her situation, mother moved with the children to Pennsylvania, where her family and support system lived and shortly thereafter mother remarried a man with a substantial income and health benefits. In Pennsylvania she was able to be a stay-at-home mother and reside with the children and her new husband in a large home in a good school district. The father filed his opposition to the relocation after mother and children moved and the court ultimately permitted her to remain in Pennsylvania primarily because it found that move benefitted the children, although the mother also presented evidence of father’s history of instability, including a criminal record, previous drug addiction, unemployment and anger problems.  

Courts have also considered any prior history of a non-custodial parent’s disinterest in the child, the child’s connection, if any, to the area where the custodial parent intends to relocate, the parent’s motive for wanting to relocate, and a variety of other facts in its application of the “best interests of the child’ standard. Again, every relocation case turns on its own peculiar facts and there is very little predictability in relocation cases. Relocation litigation today seems to require more evidence, factual analysis, and investigation than ever before. Whether you are a parent seeking or opposing relocation, a thorough knowledge of existing Virginia relocation case law is essential to prepare for and present the strongest case possible.