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No best interest analysis for child’s relocation

Virginia Lawyers Weekly//June 1, 2023

No best interest analysis for child’s relocation

Virginia Lawyers Weekly//June 1, 2023

“When granting primary physical custody to a parent in an initial custody determination, the trial court need not separately determine whether living out-of-state is in the best interests of the child, if the prospective custodial parent already lives out of state.”


Coffey, the child’s mother, and Brandon, the child’s father, jointly agreed that the child would live with Coffey. When Coffey retired from the Navy, she took a job in England.

“Coffey applied for a student visa for the child, with Brandon’s consent. In support of this visa, Brandon executed a declaration stating that the child had lived with the mother ‘[h]er whole life’ and that it was ‘impossible and unacceptable [t]o separate them.’

“Due to a delay in processing the child’s visa, the parties agreed that the child would live with Brandon until May 2020. Coffey moved to England alone in October 2019, while the child moved temporarily to Dundas with Brandon.

“In February 2020, Brandon told Coffey that ‘it would be nice if … [the child] could stay here’ and asked her to keep the child enrolled in school in Virginia. Coffey reminded Brandon that they agreed the child would move to England after her school year and stated that she had already enrolled the child in an English private school.”

Brandon filed a petition in the J&DR court, seeking custody and visitation. “Coffey cross-petitioned for the same relief.

“While the petitions were pending, Brandon refused to allow Coffey visitation until December 2020, when the J&DR court awarded Coffey temporary visitation. Brandon told Coffey that she could have custody if she ‘moved back’ to ‘the East Coast.’

“In June 2020, Coffey resigned from her job and moved to New York. On April 1, 2021, the J&DR court awarded Brandon sole legal/primary physical custody. Coffey appealed.

“On appeal, the circuit court heard that the child spent her first ten years with Coffey, by agreement. It also heard that both parents have succeeded at addressing the child’s physical and intellectual needs but have failed to meet the child’s emotional needs. …

“The circuit court awarded joint legal custody and primary physical custody to Coffey. In a letter opinion, the circuit court reviewed the factors of Code § 20-124.3. …

“Specifically, the circuit court found that: Brandon had a more limited relationship with the child, Brandon had prevented Coffey from visiting the child, the child had developed issues at school since living with Brandon, Coffey had never prevented Brandon from visiting the child – and had, in fact, ‘always actively supported the child’s contact with father’ – and the child appeared to ‘always c[o]me first’ in Coffey’s life.

“On February 25, 2022, the circuit court entered a final order in accordance with its written opinion. This appeal followed.”


“On appeal, Brandon argues that any initial custody determination involving removing a child from the Commonwealth must include an express, written finding that such removal is in the child’s best interest under Code §§ 20-124.3, -124.5.

“He argues that the circuit court’s ‘fail[ure] to make express findings’ regarding the child’s ‘relocation’ from Virginia to New York thus mandates reversal.

“Because Virginia law does not require a relocation analysis in initial custody matters, Brandon’s argument fails. …

“[W]e have rejected similar arguments in two cases, de Haan v. de Haan, 54 Va. App. 428 (2009), and Petry v. Petry, 41 Va. App. 782 (2003). …

“In both de Haan and Petry, the relocating parent had not yet moved when their custody matters were heard. … Nevertheless, in both cases we held that the circuit court need only examine the best interests of the child.

“And in de Haan, we emphasized that a separate relocation analysis was ‘unnecessary.’ …Here, by contrast, Coffey had already moved to New York and had never lived in Dundas. Thus, this case is even more clear-cut than de Haan and Petry.

“A relocation analysis of this matter is not required, as Coffey and the child never relocated. Instead, the trial court decided as an initial matter where the child would reside.

Upon review of the record, we are satisfied that the circuit court properly considered the best interests of the child when awarding joint legal custody and primary physical custody to Coffey.


Brandon III v. Coffey, Record No. 0440-22-2, May 169, 2023. CAV (published opinion) (Ortiz) From the Circuit Court of Brunswick County (Saunders Jr.) John S. Koehler for appellant. Stephen J. Sovinsky, Carl J. Witmeyer II for appellee. VLW 023-7-168, 8 pp.

VLW 023-7-168

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