Relocation

Custody and Relocation

Naturally, divorce and child custody disputes can cause intense emotional distress. This, combined with considerations like parental job changes and available childcare options, may lead a parent to want to relocate out of town or out of state with their children. Relocations involving minor children present unique and often difficult legal issues that must be resolved by the parties or the court. The outcome of a relocation case is dependent on the facts and circumstances of each case. For more information, please reach out to Shannon Otto Law via our website or by calling (804) 554-4561 to schedule a consultation with an experienced family law attorney.

Impact of an Existing Custody & Visitation Order

By law, every custody and visitation order contains a provision that requires a party to provide thirty days’ advance written notice to the court and the other party of any intended relocation. Once a custody and visitation order has been issued, moving without court permission may be considered a violation of the existing court order and could result in the relocating parent being held in contempt of court or facing other legal hurdles. While every custody arrangement is unique, it is often advisable for the parent wishing to relocate with the children to seek permission from the court beforehand.

Definitions

The term “physical custody” usually refers to the party with whom the child primarily resides. The term “legal custody” refers to having the legal authority to make decisions concerning a child’s health, education, and welfare. A child's primary caregiver (the parent who has physical custody of the child) is called the "custodial parent." The non-custodial parent, on the other hand, typically has some form of visitation with the child where the child spends less than half of his/her time in that parent’s home.

Criminal Implications

Custody and visitation orders are civil orders. However, there are times when violations of a custody and visitation court order can result in criminal charges. Virginia has enacted a parental kidnapping statute. In addition, violations of a custody and visitation order can, under certain circumstances, give rise to criminal charges under the Parental Kidnapping Prevention Act (PKPA) of 1980. According to Va. Code Ann. § 18.2-49.1, intentionally withholding a child from their custodial parent in violation of a court order, outside of the Commonwealth, constitutes parental abduction and can result in felony criminal charges. Additionally, Va. Code Ann. § 18.2-47 defines "abduction" as forcibly taking or keeping someone against their will with intent to deprive them of their freedom or conceal them from lawful authorities or guardianship, and can also be punishable as a Class 6 felony and contempt of court depending on the specific circumstances.

Factors the Court Considers in Awarding Custody & Considering Relocation

In resolving child custody and visitation disputes, the court will always prioritize the best interests of the children. There is no presumption in favor of either parent having custody. Virginia courts may permit relocation of a child if the relocation is in the best interests of the child and the relocation does not substantially interfere in the relationship between the child and non-custodial parent. Relocation cases are fact-specific, and whether a relocation will be approved is dependent on the facts and circumstances of your particular case.

If you desire to relocate, or if you are trying to prevent a party from relocating with a minor child, Shannon Otto Law can help. Our experienced team knows what evidence is needed and what procedures are required in relocation cases. Contact us today for more information.

Shannon Otto Law represents family law clients in the greater Richmond, Virginia metro area, and throughout Henrico County, Chesterfield County, Hanover County, Goochland County, Powhatan County, Colonial Heights, Amelia County, the City of Richmond, Louisa County, Prince George County, New Kent County, King and Queen County, King William County, Charles City County, and many other localities in Virginia.