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As Virginia residents enjoy increasingly transient lifestyles, it is becoming more common after a divorce for a custodial parent to decide to move away with a child. A custodial parent may decide to pack up to start a new family, find better employment, follow a new spouse, be closer to friends and relatives, or simply start a new life. But the move may take the child a considerable distance within the state or even out of state. What happens when both parents are actively involved in their child’s life, and the noncustodial parent does not want the child to make such a significant move? Should the custodial parent still be allowed to relocate with the child? If so, under what conditions? Courts are often called upon to decide whether to allow the relocation, enjoin the relocation, or transfer custody to the other parent. Virginia, where our firm has litigated both sides of these issues, has addressed the problem a number of times. In Virginia, a parent intending to relocate must give notice to the court and the other parent. The other parent then can seek to enjoin the move. Unfortunately, where a relocation is contested, the law in Virginia provides little clear-cut guidance as to how the courts should rule. The general belief is that it is hard to move because the Virginia courts are reluctant to approve a relocation. Courts reason that usually it is in a child’s best interests that the child’s relationship with the noncustodial parent not be substantially impaired. It is within the court’s discretion to forbid a custodial parent from relocating with a child without the court’s permission, as well as affirmatively to permit the custodial parent to move with the child. There are situations, however, where it is possible for a parent to overcome this judicial reluctance and relocate. Usually this involves (1) presenting a well-defined plan for maintaining the relationship between the child and noncustodial parent and, therefore, promoting the best interests of the child, and (2) having a good reason for the move, a reason that should also benefit the child. BEST INTERESTS OF THE CHILD In any custody modification case, the courts apply a two-pronged test to determine whether a change in custody terms is warranted: First, a court will look to whether there has been a material change of circumstances since the most recent custody award. The courts in Virginia agree that a parent’s impending relocation out of state, by itself, satisfies this prong and constitutes a change of circumstances allowing the court to review custody. Second, the court determines whether such a change in custody would be in the best interests of the child. While the Virginia Court of Appeals established in Scinaldi v. Scinaldi (1986) that distance from the noncustodial parent cannot be the sole basis for restricting the custodial parent’s residence, maintaining the benefits for the child of the relationship with the noncustodial parent is essential. It is widely recognized that it is in the best interest of a child to maintain a consistent relationship with both parents. Often this is achieved through close physical proximity to both parents, which is usually the status quo before a relocation. The burden of proving to the court that the move is in the child’s best interests falls on the custodial parent wishing to relocate. POSITIVE INVOLVEMENT Although the Virginia Code does not specifically address the test for the relocation of a custodial parent, Section 20-124.3 lists 10 factors that the courts must consider when determining custody and visitation. There is little guidance as to the weight that courts should give each factor, but certain factors seem to be given more significance in relocation cases. The first important factor is the role of the nonmoving party in the child’s life. Section 20-124.3(3) states that the court shall consider “the relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life.” For example, where a father had joint legal custody and attended the children’s school, extracurricular, and sports activities, helped the children with their homework, and met their needs when he was the caretaker, the Virginia Court of Appeals in Cloutier v. Queen (2001) denied the mother’s request to relocate. The court reasoned that the father was an active participant in the children’s daily lives, and the current environment was a positive one. Alternatively, in Stockdale v. Stockdale (2000), where a father presented “no evidence at all” to controvert the mother’s evidence that his relationship with the child would not be substantially impaired, the appeals court affirmed the decision to allow the mother to relocate with the child. Another significant factor for determining if relocation is in the best interests of the child is whether “necessitous or compelling circumstances” are the reasons behind the parent’s desire to relocate � or whether it is simply the parent’s preference to move. If the latter is true, courts are not likely to permit the move. Unfortunately, there is not a clear definition of “necessitous or compelling circumstances,” and the court determinations on this issue appear to be very fact-specific. Generally, the courts agree that moving simply for a new spouse’s job or family, or to be closer to other relatives, are not compelling circumstances where the move will cause the significant deterioration in a meaningful relationship with the noncustodial parent. Courts disagree, however, if moving to another location to gain financial security or a lower cost of living are necessitous reasons that would make the relocation in the child’s best interests. In either case, the message is clear that a court is concerned not so much with the relative costs and benefits that would inure to either parent. Rather it is concerned with the best interests of the child, which supersede the interests of either parent. The move must independently benefit the child. Virginia has specifically declined to adopt the unity-of-interests analysis, which provides that the interests of the child cannot be separated from those of the primary caregiver and, therefore, whatever benefits the primary custodian will also benefit the child. But attorneys should consider whether a child would benefit derivatively from the improved circumstances of the primary custodian. Finally, the courts in Virginia give great weight to whether the proposed relocation will substantially impair the current relationship of the child and the noncustodial parent. This element is derived from the seventh factor listed in Section 20-124.3, which requires the court to consider the “relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child.” Before 2000, this seventh distinct factor did not exist, but was combined with the current sixth factor, which considers the propensity of each parent to actively support the child’s contact with the other parent. In 2000, however, the Virginia Legislature added the seventh factor and recognized the importance of each parent’s ability to maintain a close and continuing relationship with the child, which suggests that this should be given increased consideration. A DETAILED PLAN To address this seventh factor, the relocating party must have a detailed plan that explains how the substantial relationship of the noncustodial parent will be maintained after the move. As was made clear in Petry v. Petry (2001), distance “should not be the sole basis for restricting a custodial parent’s residence except where the benefits of the relationship cannot be substantially maintained if the child is moved away from the noncustodial parent.” When the relocating parent can establish that the noncustodial parent has both the job flexibility and financial resources to continue visitation with the child after the move, a court is more likely to allow the relocation. There are many things that can go into the detailed plan. The relocating parent should provide evidence involving the new residence, the neighborhood, the school the child will attend, day-care arrangements if applicable, and extracurricular activities. The plan should point to the child-friendly aspects and cultural benefits of the new city. It also should include a specific visitation plan for the nonrelocating parent that allows that parent to maintain a meaningful and substantial relationship with the child. To the extent this plan can offer as much access to the nonrelocating parent as before the move, albeit in a different format, the better the chances are of the court allowing relocation. In sum, relocating with a child out of Virginia, or a great distance within the state, is difficult for a custodial parent to do. But it is not impossible. Ultimately, as is the situation in all custody cases, the decision in relocation cases rests within the judge’s discretion, and the results can vary greatly. Richard C. Shadyac Jr. is a partner in the Fairfax, Va., office of Feldesman Tucker Leifer Fidell. He has litigated a number of relocation disputes, including the above-mentioned Cloutier. Keenan R. Goldsby is an associate with the firm, and Katie Brouwer is a law clerk. Shadyac and Goldsby can be reached at [email protected] and [email protected], respectively.

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