Couples often split because they can’t work things out, but – when children are involved – the parties continue to be connected even after the relationship ends. Separation or divorce creates a whole new host of issues requiring cooperation and agreement between the parties. And, if the parties are unable to reach an agreement, a judge will make the determination. One of the thorniest problems for separated parents arises when one parent wants to move away with the parties’ children.
The desire to move with the parties’ children can arise in a variety of situations, which may include a parent who has a better career opportunity elsewhere, a parent who may want to move closer to their family or support system who may live in another state, or a parent who may want to remarry someone who lives out of the area, said Melissa S. VanZile of Barnes and Diehl.
“A parent who wishes to relocate may not have family where they currently live outside of their ex-partner and their family and support system may be in another state,” she said. “We also see situations where a parent has better career and economic opportunities outside of their local area or a parent who can live with family temporarily until they get back on their feet financially after the separation.”
For a family lawyer, the client often comes in with questions such as, “Can I just go ahead and move?” “Can I take the children?” “Can the other parent stop me from moving with our children?”
VanZile said she also sees the reverse, where the client is concerned the other parent wants to move away with the children. She explained that where there is a custody and visitation order in place, the burden is on the would-be mover to first show there is a change in circumstances since the current order. Secondly, they have to show the move is in the best interest of the children and the evidence must show that the move won’t substantially impair the children’s relationship with the non-moving parent.
Change in circumstances
“The court looks at the totality of the circumstances,” VanZile said. The court may consider a benefit to the parent only if the move independently benefits the children.
Factors might include whether there is extended family where the parent is going, and whether there is extended family near the children’s current home. A judge would look at the children’s ties to both places, as far as education, extended family, friends and activities, and what benefits are there in both places that would affect the children’s wellbeing.
Of course, a court also would have to consider the impact on the other parent’s relationships with the children if the move were to take place, VanZile said. Distance is a factor.
“Sometimes, the further away you go, the harder it can be. If you’re moving just an hour or two away that’s a big difference from moving across the country,” VanZile said.
In some cases, a moving parent believes that their new life plans outweigh any concern about the needs of the other parent. The would-be mover announces plans to remarry, live with the new spouse and take a new job.
“That may be a change in circumstances, but that doesn’t necessarily mean the court’s going to grant that move just because you remarry someone out of state. There are cases where a move has been denied where a parent wishes to move where the new spouse lives when the facts weren’t there to prove the move was in the best interests of the children and that the other parent’s relationship with the children would not be substantially impaired,” VanZile said.
Some cases turn on what it means to “substantially impair” the nonmoving parent’s relationship with the children.
A parent hoping to block the other parent’s move would argue, in the first place, that the children are doing well here and, secondly, that their relationship would be substantially impaired if there were a move. “A psychologist or counselor might be helpful in looking at whether or not the move would substantially impair the relationship between the children and the non-moving parent” VanZile said
“The parent hoping to block the other parent’s departure will bolster their case if they can show a close relationship with the children with frequent contacts and involvement in their daily life, such as involvement in their education and medical care and participation and attendance in the children’s activities.” VanZile said.
Sometimes a parent wants to simply make the move without prior agreement from the other parent or a court’s determination. If there is a court order in place for custody and visitation, a parent must give the court and other party written notice of their intended relocation and new address 30 days prior to the move. If the move is not a long distance and won’t impact the current visitation schedule, the parents can keep the current schedule in place and the move may never end up in dispute.
If a parent moves without a court order and without prior agreement of the other parent, there can be trouble, depending on how far away the move is and what impact it would have on the current visitation schedule. VanZile said she has seen moves get approved retroactively, but in other cases, “They had to bring the child back.”
The parent confronted with the sudden departure of the other parent can file a motion to determine custody and visitation where a current order does not currently exist or a motion to amend the current order, a motion for an injunction against the move, and may also consider filing a request for an emergency hearing, if the situation warrants it. VanZile said if an emergency hearing is granted by the court, the non-moving parent can ask the court to order the moving parent to return the children until a final determination has been made by the court. It is up to the court to decide what is in the children’s best interest at the time absent an agreement of the parties.
A divorced or separated parent considering relocation would be well advised to seek legal help as soon as plans take shape. If the move is opposed, it can take several months to resolve a challenge to a relocation plan, VanZile said.
It goes without saying that separations and divorces are emotional. Lawyers’ explanations of the law may be clear and logical, but clients usually have more than logic and reason in play.
“It is important to understand your client’s goals and motivations at the outset of the case, to manage their expectations, and to keep them well informed. As a family law practitioner, we understand that a potential move of their children is an emotional time for both parents and we try to focus our clients on gathering the best evidence to present their case in court if an agreement can’t be reached,” VanZile said.
Peter joined Virginia Lawyers Weekly as Legal Editor in March 2008. A 1992 graduate of the University of Richmond law school, he practiced in Roanoke with WootenHart from 1992 to 2005, handling insurance defense work, including medical malpractice, products liability and personal injury cases. He was with Crandall & Katt from 2005 until 2007; there, he had a plaintiff’s personal injury practice. Peter graduated in 1976 from the University of Maryland, where he studied broadcasting and journalism. He is based in Roanoke.