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One of our previous blogs describes the procedure required for parents relocating to another state. To summarize, the relocating parent must inform all other parties and the court of their intention at least 30 days ahead of time (Va. Code Ann. §20-124.5). Under most circumstances, this provision is required to be in every Virginia custody order. Sometimes, a party disregards this provision and relocates anyway, subsequently filing a retroactive request for permission to relocate. Virginia courts have entertained such requests.
Does the Best Interests Standard Still Apply in Retroactive Relocation Cases?
Even when there a violation of the notice provision described above, Virginia courts focus their analysis in a retroactive relocation case on whether ordering the child returned would be in the best interests of the child. This has led to at least one result where a judge in a Virginia Court of Appeals case approved a retroactive relocation request notwithstanding failure to provide the required notice. Upon finding that relocation was in the child’s best interests, the Court reasoned that “positive changes in a child’s life cannot be disregarded… to ‘punish’… the parent seeking retroactive permission to relocate” (Sullivan v. Jones, 2004).
What Happens If Relocation Is Not in the Child’s Best Interests?
Retroactive requests for permission to relocate are not always successful. In two cases where separate non-custodial fathers relocated with their children to Pennsylvania during visitation, the Virginia Circuit Court ordered that the children be returned to Virginia (Van Dyke v. Van Dyke, 1998, and Heffron v. Heffron, 2013).
These cases are distinctive, however, because they involved non-custodial parents who seemed to have exceeded their visitation periods and disregarded the notice-before-relocation requirement. Violating the provisions of any court order, including Virginia custody orders, can result in a loss of rights, fines, or even incarceration of the parent in contempt.
When there is significant actual harm to a child’s relationship with the non-custodial parent as a result of a relocation, Virginia courts must factor that into their decision. In a 2016 Virginia case, the Court of Appeals reversed a Virginia Circuit Court decision, finding it was an abuse of discretion when a relocation to Ohio was permitted notwithstanding the fact that the father, who was disabled, would be unable to see his children on a weekly basis as he had before, and the mother did not make or accommodate any long-distance travel arrangements. In this case, the mother had moved with her children less than a week before the final hearing, which the lower court approved without making the necessary findings (Takacs v. Takacs, 2016).
Contact our Experienced Family Law Attorneys Today
The cases we have discussed show that fighting a relocation case requires a thorough evaluation of the facts and applicable factors. If you are fighting a custody or relocation case, you need a skilled family law attorney on your side to defend your rights and interests in court. Our family law attorneys at Keithley Law, PLLC, PLLC have the expertise you need to pursue the outcome you deserve.
Call (703) 454-5147 to schedule your consultation today.
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