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Moving The Children—A Case In Favor Of Moving The Children

On Behalf of | Jan 25, 2019 | Legal Custody |

I would like to review a published case from Virginia’s Court of Appeals dealing with relocation of the children out of state. The trial court and appeals court approved mother’s request to move the children from Virginia to Wisconsin.

In Judd v. Judd, 53 Va. App. 578 (2009), the husband appealed the trial court’s decision to allow the wife permission to move the parties two children with her to Wisconsin. At trial, the wife testified about her family in Wisconsin, and described how she thought the boys would benefit from moving; efforts she intended to take to make sure the boys maintained a relationship with their father who would remain in Virginia; the limited role the father had played in the kids’ lives. Husband disputed this, stating that he had been an active, involved parent.

The trial court held that the move would not substantially impair the boys’ relationship with the husband, that the relocation was in the children’s best interest, and established a detailed visitation schedule for regular visitation with Husband in Virginia, with the wife paying all costs for travel.

The Court of Appeals affirmed the trial court permitting the wife to move the kids to Wisconsin.

There is no statue in Virginia that addresses relocating the children.

The law provides that a party seeking relocation must show (1) that a change of circumstances has occurred since the last custody award, and (2) that the relocation is in the children’s best interest.

The legal analysis focuses on what is in the children’s best interests. This is determined by the factors in Virginia Code Section 20-124.3:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

The parent seeking to move bears the burden of proving the relocation will not substantially impair the relationship between the children and the non-moving party.

Here, wife’s evidence proved that husband exhibited little or no interest in spending time with the kids until he learned that wife was keeping a detailed log of his behavior towards the children and was planning to file for divorce. A prior case held that where the trial court found that prior to the parties’ separation “husband had abdicated to a great extent his parental duties,” the court found that “holding husband’s prior history of parental disinterest” was a proper factor for consideration. The Court found that the husband’s involvement in things like home schooling was only recent. The wife was the main caregiver. The trial court provided a detailed visitation schedule for husband (4 weeks in the summer in Virginia) and ordered wife to pay for the travel. The court found that wife would have more time with the kids due to the reduced commuting time in Wisconsin compared to Virginia. The cost of living was less in Wisconsin. She could earn more money in Wisconsin. Wife’s extended family resided in Wisconsin. The kids, ages 4 and 6, has not developed ties to friends and places (school, church) in Virginia such that a move would uproot them. They had made prior visits to Wisconsin so that it would not be unfamiliar to them. They would have a smaller community for wife’s work, the kids schooling, private school (which both parents wanted and would be affordable in Wisconsin but not in Virginia), their family ties in Wisconsin far exceeded the ties in Virginia, where other than the husband, they had only paternal grandparents with whom they were not that close.

The decision to permit relocation is dependent on the facts of each case.

In Judd, the court focused on wife’s primary caretaking role, father’s lack of child involvement until recently, wife’s extended family living in Wisconsin, wife having more time with the kids and less time away from them commuting, the children’s young ages and lack of longstanding ties to Virginia, and the amount of visitation the husband was granted in the summer.


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