Custody Laws In VA
When custody arrangements exist, the State of Virginia generally requires notice that a parent intends to move with a minor child. In Virginia, if a custodial parent wishes to move with a minor child, they must notify the court and the other parent. Depending on who has custody of the children, parents may apply to the court for permission to move outside of Virginia.
It is clear that the custodial parent cannot travel out of state until they receive permission from the Guardianship Court in Virginia. A custodial parent may move in with a minor child unless a court order prevents it from doing so. Virginia courts will allow the transfer of a custodial parent with a child to the custodial parent of the child only if the custodial parent can demonstrate that the transfer would be in the child’s best interests.
If the custodial parent is allowed to move in with the child, the court may need to change the current visiting arrangements. If this is the case, it may be necessary to apply to the court to change the procedure allowing the proposed transfer and change the visitation schedule so that the transfer does not interfere with the visiting procedures of other parents. Regardless of which parent you are, if you and the other parent do not agree that the child should move or stay, you will need court intervention.
While your move does not require court approval, you will need court approval to move minor children. If you are a parent who wants to leave Virginia, or a parent who is trying to prevent your child from leaving Virginia, remember that there are no guarantees as to what the court will decide. When the opportunity to move arises, the custodial parent must apply to the court for permission to move out of state. When a custody order already exists, the parent requesting the transfer must provide evidence of a change in circumstances requiring the transfer.
When the other parent has no objection, the court will usually grant an assignment and a modified guardianship agreement. If the court finds that the parent requesting the transfer is manipulative and that the purpose of the transfer is to isolate a family member who currently has a legal right to visit the child, the court will not grant it. If you share custody of a child with a parent and neither party can decide to transfer, the court steps in and decides which parent the child lives with.
It is also important to understand that even if a parent has sole legal custody, this does not give him or her the unilateral right to leave the jurisdiction with the child. Having sole legal custody does not mean you have the right to travel outside the jurisdiction with your child or children. Instead, courts in transfer cases will apply this more subjective test if the child’s best interests are protected by amending an existing custody order to allow transfer.
If such a move is part of the original divorce plans, such as part of a custody request, the court determines how the “best interests of the child” factors listed in the Virginia Code will apply to a problem transfer. For example, if the non-transferring parent then plays a disinterested or rarely involved role in the child’s well-being, the court will often view the transfer as a minor change, if any, to the child’s life. If the parent who does not move is “over-involved”, demonstrating a close and committed relationship with the child, the Court has often viewed the move as a minor change as well, this time apparently feeling that the relationship is strong enough to endure the distance. . Any move that could affect the relationship of the non-moving parent with the child must be approved by the court.
If the non-moving parent has little or no relationship to the child, the court will take this into account when assessing the impact of the move on that relationship. If the non-custodial parent has little or no relationship to the child, this will also be a significant factor for consideration by the Virginia Guardianship Court when deciding whether to grant the custodial parent permission to move to another jurisdiction. Although the relationship between a child and a parent who has not been transferred will inevitably change, the Court needs to know whether the relationship would be materially damaged as a result of such a transfer.
In addition to the Virginia Court of Appeals ruling in Sullivan v. Knick, the trial court must also consider whether the relationship between the children and the non-relocating parent can be substantially maintained if their child or children are allowed to relocate. Before the judge approves the transfer, the parent proposing the change will need to prove that the move is in the child’s best interests by showing that it is of real benefit to the parent and not detrimental to the child’s best interests. If you are a custodial parent, you will need to provide the court with as many reasons as possible why the move would be in the best interests of the child, detailing to the court what life will be like for the child in his or her new residence.
Virginia courts, if it does not affect the child’s best interests, may order you to return the child to Virginia if another guardian requests it. If you have legal reasons for moving, you will need to ask the judge to allow you to take your child out of state. You have the ability to find an order that blocks the move or gives you custody. If you ignore the court order and move your child without the consent of the court, you will face serious consequences.