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Can I move out of state if I have a joint custody agreement with my son's father?

Herndon, VA |

I have a joint custody agreement through ffx co courts. I am the primary custodial parent. I have to notify the court and child support agency 30 days before moving but if I wanted to move out of state do I need to go back to court, in front of the judge, for "permission" basically if my family and I were to move out of state? My ex has every other weekend visitiation with my son and I'm not sure how this would effect the custody agreement and I'm sure my ex is going to give me problems for moving so far away. I'm not sure what the laws are in VA for this are and don't want to get into trouble but may need to move out of state in the near future to be closer to my father who is a senior and having medical problems. thank you for your time and any information that you could provide.

Attorney Answers 2

  1. There are really two questions here. Can you move out of state? Absolutely. You are legally free to move wherever you want.

    Can you move your son out of state? Maybe. The court does have authority to permit or refuse your son's relocation. The 30-day notice obligation is to provide the other party an opportunity to prevent a child's move.

    Under some circumstances, a parent could move out of state, but remain close enough to continue the existing visitation schedule.

    And that is essentially the challenge of relocating the child. The moving parent has to show how there is independent benefit to the child, and show that the child's relationship with the non-moving parent will not be unacceptably harmed.

    Ideally, you work out the alternative relocation options with the other parent. Then, in the event you have to move, you have a new custody/visitation plan in place.

    If you can't resolve the matter in advance, then a likely scenario plays out with you moving the child, the father getting a court order to return the child to Virginia to live in his care until a trial, in several months, can be heard.

  2. The first thing that you will want to do is review both your custody agreement and the court order incorporating the custody agreement to determine whether there is a provision that states that neither party shall permanently remove the child from Virginia without the prior consent of the other party and/or permission of the court (or similar language). If there is such a provision, then you would be required to obtain such prior consent and approval before relocating the child out of state. Some agreements or orders even include a limitation as to how far the custodial parent can relocate the child within the state without prior approval.

    If neither the agreement nor the order (or both) contain any such limitation, then 30 days advance notice of the relocation would be all that is "required". Then, as Mr. Miller explained, it would be up to the other parent (or the court on its own motion) to object to the move by filing a motion for modification of custody and/or a motion to enjoin the removal of the child from the state. If such a motion were filed, then you would have the burden of proving to the court that the move is in the best interests of the child (not in your interest or your ailing family member's interest).

    In the event that there is no prohibition against relocation of the child AND the other party does not take any action with the court to enjoin the relocation and/or to change custody, you still have the issue of complying with the court order as to the current visitation provisions. So, you would need to figure out a plan as to how you will transport the child back and forth to Virginia every other weekend to provide the other parent with their visitation. If complying with the every other weekend visitation schedule is going to be too onerous on you or the child or impossible to comply with, then you will need to return to court for a modification of visitation (whether by agreement with the other parent or as a contested matter). Otherwise, you will be technically in violation of the court order and the other parent could pursue a contempt of court action against you (known as Rule to Show Cause).

    I would suggest that you consult with an experienced family law attorney about your situation and discuss your options in more appropriate detail so that you can make a better informed decision as to how to proceed.

    This response does not create an attorney-client relationship and is intended for general information purposes only.

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