Relocation Cases in Virginia

Changes in Latitudes,

Changes in Attitudes

Introduction: The right of the custodial parent to unilaterally decide to move with the children away from the non-custodial parent has created a great amount of litigation. Relocation cases are some of the most complex and troublesome in divorce and post-divorce litigation.

Virginia provides no statutory roadmap for the determination of custody in relocation matters.

Back to the Future:
When in doubt, or as a matter of good legal practice, always return to the basics. §20-107.2 provides the authority to the court in the case of a divorce to decree as to the custody of a child. §20-124.2.B mandates that the court shall: Give primary consideration to the best interests of the child. Assure frequent and continuing contact with both parents. Encourage the parents to share in responsibilities of rearing their child. In making its determination pursuant to §20-124.2, the court is guided in this determination by §20-124.3.

§ 20-124.3. Best interests of the child; visitation
In determining best interests of a child for purposes of determining custody or visitation arrangements including any pendente lite orders pursuant to §20-103, the court shall consider the following: 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 §16.1-288. 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. The judge shall communicate to the parties the basis of the decision either orally or in writing.

In any proceeding involving custody or visitation, the court shall include as a condition of any custody or visitation order a requirement that thirty days' advance written notice be given to the court and the other party by any party intending to relocate and of any intended change of address, unless the court, for good cause shown, orders otherwise. The court may require that the notice be in such form and contain such information as it deems proper and necessary under the circumstances of the case. (§20-124.5).

The intended relocation may come as a surprise, or not, and may or may not have any effect on the existing custody and visitation arrangements. When a party receives such notice, they have very little time to assess their options. Unfortunately this statutory scheme does not provide sufficient time to conduct meaningful alternative dispute resolution to §20-124.2.A, which provides that mediation shall be used as an alternative to litigation, where appropriate.

In the event the parties are unable to come to a quick resolution regarding a new custody/visitation arrangement, the non-relocating party has no alternative but to seek immediate redress from the court. The courts in Northern Virginia will generally enter an injunction against relocating the child/children in question and set a trial date relatively quickly to hear the issues.

The issue of relocation involves a balancing of interests. There are often advantages and disadvantages on both sides. “A party seeking relocation must show that a change of circumstances has occurred since the last custody award and that relocation would be in the best interests of the child…The party requesting relocation bears the burden of proof on both issues.” Sullivan v. Knick, 42 VA App. at 806.

There can be many different reasons for relocation. More often they are employment relocation (voluntary or employer mandated), a new spouse must relocate (which may involve stepsiblings) or the desire to move “back home” where there is familial support.

There are an equal number of reasons not to allow a relocation of a child/children including interference with the parent-child relationship, the particular needs of the child/children to have the non-custodial parent involved regularly in their routines, and the cost of the new visitation agreement.

The courts have been good in making a swift determination if the anticipated relocation is for the purpose of alienation or some other ulterior motive.

Unless plainly wrong or without evidence to support relocation, an appellate court must affirm the decision of the prior court. The relocation may benefit the moving party but such a consideration is only valid if it benefits the child as well. Cloutier v. Queen, 35 VA App. 413

Case history pre-Sullivan

Relocation Denied Carpenter v. Carpenter, 257 S.E.2d 845 (Va. 1979) – Cir Ct of Norfolk Facts: Mother petitioned to move the two children (ages 7 and 9) from Virginia Beach to New York City, alleging that she could not find work as a chemist in Virginia Beach, could not meet her financial obligations, that the children would have more opportunities for education and culture in NYC, and Mother’s extended family lived in NYC. Father had regular visitation (every Wednesday, every other weekend, sharing of holidays, weeks during the summer, etc.) and objected to the move. Holding: The Supreme Court affirmed the denial of Mother’s petition to relocate to NYC. Rationale: The sole issue is what is in the best interests of the children. Father saw the children regularly, frequently and more often than the time allocated in the Decree. The children lived in VA their entire lives and were happy, well-adjusted, and had good grades. Mother had not applied for chemist jobs in VA, outside of VA Beach, and intended to live with her mother and stepfather until she could find a job, having no job offers prior to relocation. Further the court opined that educational and cultural advantages in NYC were not significantly greater than in Tidewater.

Relocation Granted: Best Interests of the children govern even over parental objection Gray v. Gray, 324 S.E.2d 677 (Va. 1985) – Cir Ct of Chesterfield County Facts: Custodial parent (Mother) petitioned to move their two children (ages 9 and 11) from Virginia to Arizona and Father objected. Father had regular visits with the children. The trial court found it was in Mother and the children’s best interests to move to Arizona, but denied the petition because the judge believed Carpenter v. Carpenter demanded he do so. Holding: Supreme Court reversed allowing Mother to move the children to Arizona. Rationale: Supreme Court clarified Carpenter v. Carpenter to hold only that “before a court permits a custodial parent to remove children from the Commonwealth, it must determine that removal is in the children’s best interests.” Gray, at 678. The issue is what is in the best interests of the children. If the trial court finds relocation to be in the best interests of the children then the court may permit the children to relocate over parental objection.

Relocation Granted: affirming Best Interests standard and a balancing test Simmons v. Simmons, 339 S.E.2d 198 (Va. App. 1986) – Cir Ct of Dinwiddie County Facts: Divorce in Feb. 1984, Father remarries Jun. 1984, Mother seeks to relocate and Father files action to enjoin in the JD&R Ct in Aug. 1984, which permits relocation by Order in Jan. 1985. Circuit Ct affirms in Feb. 1985. Custodial parent (Mother) wants to move the four children to FL so she can attend college and be closer to her family. Father wants the children to stay in VA, has a big house, lots of land, and horses. Mother has not yet enrolled in college in Florida and earns $4/hr, but can live rent-free with relatives in FL. Holding: Court of Appeals affirms that it is in the best interests of the children to move to FL. Rationale: Affirms Carpenter and Gray and disagrees with the NJ case cited by Father. VA rule is that “the move will be allowed if the trial court determines it is in the best interests of the children.” Simmons, at 201. Mother has been primary caregiver and Father works 50-60 hours/wk, though he states that stepmother is available to provide care. Also two children had learning disabilities and one was emotionally disturbed; both were in special classes and counseling. Court found that no evidence that FL schools and programs could not accommodate the special needs.

Dicta of note:

“We note with regret that this case presents the too familiar dilemma in our increasingly mobile society where the noncustodial parent faces an extended physical separation from his or her children when the custodial parent seeks to move to another state. Seeking a change of custody to the noncustodial parent is often felt to be the only available recourse of such a parent and seldom address the true issue of the best interests of the children.”

C.J. Koontz in Simmons v. Simmons, 339 S.E.2d at 200.

Relocation Granted: balancing between benefit of proximity vs. freedom to move Scinaldi v. Scinaldi, 347 S.E.2d 149 (Va. Ct. App. 1986) – Cir Ct of VA Beach Facts: In divorce action, Mother prays to move to NY because she was about to lose her home in Tidewater (sold per the FDD) and her job (company went bankrupt). The parties were originally from NY moving to VA in 1979, the parties separated in 1983 and Mother moved to NY in 1985. Prior to move, Father saw the children on alternating weekends. Circuit Ct gave custody to Mother but denied petition to move the children (ages 3 and 8) to NY. Holding: Court of Appeals reversed finding it in the children’s best interests to move from Virginia to New York. Rationale: Father’s devotion to the children does not in itself determine what is in the children’s best interests. The court must look at “whether the benefit [of having the noncustodial parent nearby] is available to the child only if he or she lives in close proximity.” It is not enough that the visits would be less often, more expensive, and more difficult. The Court further wrote that increased difficulty alone is not enough to deny the custodial parent the freedom to choose where they and the children live. Also there was evidence that Father negotiated a visitation provision to address his time with the children if he were transferred from Tidewater and there was an Order preventing Father from having his girlfriend spend the night when the children were in his custody, showing an “insensitivity” for the children’s best interests.

Relocation Granted but Custody changed: Burden of proof on moving party Hughes v. Gentry, 443 S.E.2d 448 (Va. App. 1994) – Cir Ct of Henrico County Facts: Mother had custody of two sons (one biological of the parties and the other is biological to Mother and adopted by Father). After divorce, Mother remarried and gave birth to two daughters. Mother wanted to move the boys from Henrico County to Wisconsin. Father had liberal visitation with both sons but later terminated relationship with adoptive son. JD&R Court awarded Father custody; son lived with Father pending hearing. Cir Court also awarded Father custody. Holding: Affirmed. Rationale: Court applies the two-part test when there is a petition for a change in custody: was there a material change in circumstances and is a change in custody in the best interest of the child? But burden rests on the party seeking to change custody to show a material change. Even if relocation has not yet occurred, the court has jurisdiction; further, Mother ’ s remarriage is also a change in circumstances. No special weight given to separating a child from his siblings or step-siblings; such is only one factor.

Relocation Granted: relocation prior to Court approval does not bar parent from requesting retroactive relief Parish v. Spaulding, 496 S.E.2d 91 (Va. App. 1998) – Cir Ct of Prince William County Facts: Prior to relocation, Mother filed notices and petitions which were denied on procedural grounds. Mother relocated two children to Indiana. Father argued that the material change in circumstances is invalid because Mother created the change in circumstances by moving contrary to injunctions issued by JD&R and Circuit Cts. Holding: Court of Appeals affirms that it is in the best interests of the children to relocate to Indiana.

Rationale: Mother wanted to move to Indiana for economic reasons (live rent-free, new husband had full employment in Indiana, Father was not paying child support anyway) and other reasons (more opportunity for Mother’s education, provided emotional stability for the children, and the move was made in the summertime so as not to disrupt the school year). Mother was always the primary caregiver, could provide the most stable home and opportunities for growth, had a good relationship with the parties’ children and that the parties’ children had a good relationship with their half-siblings, and that she provided the most stable environment.

Dicta of note: “It follows from these decisions that the custodial parent's voluntary relocation of the children does not bar that parent from thereafter seeking modification of the trial court's order of custody; nor does the custodial parent’s action bar a motion seeking approval of the relocation retroactively.”

J. Annunziata in Parish v. Spaulding 496 S.E.2d at 94.

Relocation Denied: Court rejects “unity of interests” analysis Cloutier v. Queen, 545 S.E.2d 574 (Va. App. 2001) – Cir Ct of Fairfax County Facts: Parents shared time almost equally. Mother wanted to move the parties’ two children (ages 6 and 8) from Fairfax County to PA. Mother had remarried and new husband was an attorney in PA who had custody of his two children. Initially Mother’s motion was granted, but upon reconsideration denied. Holding: Court of Appeals affirms the denial of Mother’s motion to relocate. Rationale: It was in the children’s best interests to be in close physical proximity to Father. Father was active daily part of the children’s lives, the joint custody arrangement worked very well, and the children expressed a desire to spend more time with him. Mother said that the children wanted to move and offered to handle transporting the children to Father. Court held that the children’s relationship with Father would suffer and could not be maintained except through close physical proximity which they currently enjoyed. Court held that it was likely in Mother’s best interests to move to Pennsylvania, but this factor is considered only if the move also independently benefited children.

Relocation Granted: No presumption of harm based upon joint custody Goodhand v. Kildoo, 560 S.E.2d 463 (Va. App. 2002) – Cir Ct of Fairfax County Facts: Mother petitioned to move the child (age 10) to AZ, where Mother’s new husband lived. The child lived primarily with Mother during the school year and primarily with Father during summers. The child expressed an interest in remaining in VA. However, court considered all relevant factors and determined it was in the child’s best interest to move to Arizona. Holding: Affirmed, a parent with joint custody is not entitled to a presumption of harm based solely upon relocation and child’s desire is only one factor. Rationale: The trial court went through each of the statutory factors in §20-124.3 and found many to be neutral, but some favored Mother. The court considered the child’s wishes, but weighed it as similar to the other factors. Father’s devotion to the child does not alone determine the child’s best interest, and there is no evidence that their relationship would suffer if child moved to Arizona.

Relocation Granted Banit v. Banit, No. 3237-01-4, 2002 WL 799836 (Va. App. Apr. 30, 2002) – Cir Ct of Fairfax County UNPUBLISHED OPINION Facts: Mother petitioned to move child from Fairfax County to California. Parents had an alternating week schedule. Child was diagnosed by school psychologist as depressed and learning disabled.

Holding: Court of Appeals affirmed; Mother should have primary custody (instead of the prior joint custody arrangement) and could relocate child to California.
Rationale: The trial court considered the child’s mental condition to be one of the factors considered under Code §20-124.3(1). The trial court found that the joint custody arrangement was a failure. The trial court believed the child and Father’s bond was strong enough to not be substantially impaired by move away from Father and Father had summers and holidays to compensate for lost daily time with the child.

Sullivan v. Knick I

Relocation Denied Sullivan v. Knick, 558 S.E.2d 430 (Va. App. 2002) – Cir Ct of Fairfax County

Facts: Custodial parent (Mother) sought to move the child (3 years old) to SC to live with her fiancé. Mother testified that she would do whatever was in the child’s best interests including staying in Alexandria. Fiancé testified that his prime motivation was to relocate closer to his son from a prior marriage. This was 3 months after the court had expanded Father’s time with the child. Trial court opined that with longer but less frequent visits and the use of technology Father’s relationship would be substantively preserved and gave Mother leave to relocate.
Holding: Court of Appeals reversed. Rationale: Father was an exceptionally involved parent whose relationship with the child had recently improved with increased visits and the improvement in this relationship benefited the child. Both experts agreed that technology could ameliorate but not fully compensate for the loss of personal contact. Further fiancé was motivated to return to SC to be with his son, not because he could not find employment in VA, and Mother could be a stay-at-home mother regardless of state of residency. The evidence established that relocation was the preference of Mother and fiancé and not necessitous or compelled. Record reflected few benefits to child in relocation and clear disruption of her relationship with Father.

Time goes by – Mother marries. The child develops relationships in SC with her new step-father, step-brother and other family and friends. Mother gives birth to a new baby boy in October 2002 and the child develops a relationship with the new sibling.

Relocation Granted: No change in circumstances required when part of Final Decree Petry v. Petry, 589 S.E.2d 458 (2003) (BETWEEN SULLIVAN I and II) – Cir Ct of Lynchburg Facts: The parties grew up on Long Island and had extended families there. After marrying, Mother regularly returned to Long Island with the children every two to three months to visit for one to three weeks. The children developed substantial connections. Father previously wrote that he would not object to move outside of VA if he had alternating weekend visitation and Mother provided half the transportation. The parties divorced and the trial court granted Mother’s request to move to New York with the children. Holding: The Court of Appeals affirmed decision to allow move to NY. Rationale: It is in the children’s best interests to relocate to Long Island. Because the trial court addressed the relocation issue in its entry of a Final Decree, it was only required to find that the relocation was in the best interests of the children. The Court distinguished Sullivan I on five points: 1. Father was not an exceptionally interested parent, 2. the children had substantial connections to Long Island, 3. the time with Father would not be substantially different, 4. the distance will not affect that nature of the parental relationship and 5. an unity of interest analysis was not done and the move was independently in the children’s best interests.

Sullivan v. Knick II

Relocation Granted Sullivan v. Knick, 595 S.E.2d 36 (Va. App. 2004) – Cir Ct of Fairfax County

Facts: Upon remand, Mother filed Motion to modify custody and Father filed Motion to change physical custody to him if Mother did not return to VA. But at Father’s request, court delayed implementation of Order until Jan. 2003 and gave leave to parties to petition court for a full hearing on any relevant issue regarding the return of the child. A full hearing was conducted in Jan. 2003 upon each party’s petition for custody – 14 months after child’s relocation. Trial court ruled that it would be in the child’s best interests to stay in SC.
Holding: Court of Appeals affirmed. Rationale: Trial court reviewed all of the factors. No evidence was presented that relocation made the child’s relationship with the father more distant. If custody was changed the child would spend more time in childcare instead in the care of a parent as she would if she remained in Mother’s primary care in SC. Father had exercised more visitation with the child since her move to SC than he had before though the intervals between visits were longer.

American Academy of Matrimonial Law Proposed Model Relocation Act
§ 405. Factors To Determine Contested Relocation In reaching its decision regarding a proposed relocation, the court shall consider the following factors: (1) the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the non relocating person, siblings, and other significant persons in the child’s life; (2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;

(3) the feasibility of preserving the relationship between the non- relocating person and the child through suitable [visitation] arrangements, considering the logistics and financial circumstances of the parties;
(4) the child’s preference, taking into consideration the age and maturity of the child; (5) whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating person;

(6) whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to, financial or emotional benefit or educational opportunity;
(7) the reasons of each person for seeking or opposing the relocation; and (8) any other factor affecting the best interest of the child.

Case history post-Sullivan

Relocation Granted: Disintegrating economic circumstances are a material change Wheeler v. Wheeler, 591 S.E.2d 698 (VA App. 2004) – Cir Ct of Fairfax County
Facts: Custodial parent (Mother) sought to move three children (ages 11, 7 and 4) to FL. After divorce, Mother and children moved to a townhouse when Mother could not afford the rent. Her financial situation worsened and they moved again. Mother’s boyfriend proposed marriage contingent upon this relocation to FL. Holding: The trial court’s decision to allow relocation to Florida was affirmed. Rationale: Mother ’ s worsening financial condition was a material change in circumstances. The trial court found that relocation to FL would provide the children with stability. The maternal grandmother also intended to move there. Moreover, the children’s economic situation would improve and Mother would be able to continue to stay at home with them. The court found that there was no status quo as Mother would have to relocate to Prince William county or Manassas because of her financial condition if her Motion was denied and Father ’ s visitation would be affected. The benefits of relocation are in the best interests of the children. Trial court found strong bond between Father and the children would remain, absent physical proximity.

Relocation Granted: Transfer of Employment Surles v. Mayer, 146, 628 S.E.2d 563 (VA App. 2006) – Cir Ct of Spotsylvania County
Facts: Father and Mother had a daughter out of wedlock. Mother had physical custody of the child by Order. Mother accepted an offer to transfer her employment to FL. Father requested that he either be granted physical custody or that Mother be enjoined from relocating. JD&R court allowed Mother to relocate. The majority of Mother’s extended family relocated to FL. The Circuit court, affirmed, holding that the benefit to the child outweighed the detriment to her relationship with Father. Holding: The Court of Appeals held the child’s best interests would be served by continuing to reside in FL. Rationale: While trial court did not make an express finding regarding a material change in circumstances since entry of the original custody Order, Mother’s relocation to FL prior to the Circuit court hearing – in and of itself – constituted a material change in circumstances. With regard to the best interest analysis, the child benefited from the presence of all of her maternal relatives in FL, extra space in the FL home, and the fact that her allergies, for which she took medication, no longer troubled her.

Relocation Granted: Change in circumstances not expressly stated – New Husband’s Employment Masters v. Sutton, No. 2379-06-4, 2007 WL 967172 (VA App. 2007) – Cir Ct of Fairfax County UNPUBLISHED OPINION Facts: Mother had primary physical custody of the child (9 years old). Mother’s new husband accepted a job in PA. The trial court held that relocation was in the best interests of the child. Holding: The Court of Appeals affirmed the relocation to Pennsylvania. Rationale: In light of the fact that Mother had been the child’s primary caretaker throughout the child’s life and had addressed the child’s special education needs, that Mother was not motivated by a desire to reduce Father’s time with the child; the relocation was less than three hours’ drive from Father’s residence; and Father’s mental health and employment issues, along with his possible upcoming change in residence, indicated that he was unable to provide the child stability and structure, the Court of Appeals affirmed.

Relocation Denied Shaw v. Shaw, No. 2022-05-4, 2006 WL 1525961 (Va. App. June 6, 2006) – Cir Ct of Clarke County UNPUBLISHED OPINION Facts: After divorce, Mother sought sole custody of their four children and to relocate to her parents’ home in AZ because of the lower cost of living and her parents providing free housing and free childcare, enabling her to complete her college degree or re-enter the workforce. The trial court denied the mother’s request. Holding: The Court of Appeals affirmed the trial court’s denial of the mother’s request to relocate to Arizona.

Rationale: Relocation would have a negative impact on the children’s relationship with Father, the children had extended paternal and maternal family near the marital residence, and Mother failed to prove that relocating to AZ was necessary for her return to school or re-enter the workforce. Further evidence indicated Mother’s move was motivated by a desire to start anew and leave Father behind.
Priest v. Credle, No. 1072-06-1, 2007 WL 817451 (Va. App. Mar. 20, 2007) – Cir Ct of Williamsburg UNPUBLISHED OPINION Facts: The trial court awarded primary physical custody of the parties’ children to Mother and denied Father’s motion to relocate to FL with children. The children had lived in Williamsburg all of their lives, all of their friends lived there as well as extended family. Holding: The Court of Appeals affirmed the trial court’s denial of Father’s motion to relocate to Florida. Rationale: A move to FL would significantly curtail Mother’s relationship with the children and would impede her involvement in their education and activities. Mother’s relationship with the children had improved with time while Father had a strained relationship with the daughter. Father argued that the Court should consider that moving to FL would reduce his stress level making him a better more patient parent. Best interests of the children were to remain in VA; moreover, the children expressed their desire to stay in Williamsburg, and the guardian ad litem recommended that the children remain there.

Final Thoughts

Can a custodial parent enjoin a noncustodial parent from relocating because it is not in the child’s best interests?


What is the effect of technology in
lessening the substantial impact that relocation may have on a parent-child relationship? Should you have a proposed “ technology enhanced ” visitation plan if you are seeking to relocate?

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