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Relocating a child out of state after a divorce

As the economy has declined over the past several years, many people have found it necessary to move in order to find a job. For divorced parents with children, this can create an enormous conflict when one parent is re-locating out-of-state and wants the children to move, too.

In resolving such conflicts, a court will first look to see if a custody order is in place. If so, the court will ask if a material change of circumstances has occurred such that the original order should be modified. When one parent is re-locating for a new job - or for a new spouse's job - there is almost always enough evidence to show a material change of circumstances and request a modification of the earlier order. On the other hand, when the move is occasioned by wanderlust or the desire to live somewhere with nicer weather, a court is not going to find a material change of circumstances.

Having determined a modification is warranted, a court will next determine what the "best interests" of the child are - staying in Virginia, or moving. In making this determination, a court is guided by state law, which requires a judge to consider a variety of factors, including the following:

-The age and physical and mental condition of the child
-The age and physical and mental condition of each parent
-The relationship existing between each parent and each child
-The needs of the child
-The role each parent has played and will play in the future in the upbringing and care of the child
-The propensity of each parent to support the child's relationship with the other parent
-The preference of the child, if the child is of such an age to express a preference

When one parent is attempting to take the children with them out-of-state for a move, the other parent often argues that doing so will substantially impair his or her relationship with them. While this is almost always true, courts will sometimes allow the parent who is moving to take the children.

In the case of Wheeler v. Wheeler, the parties had three children at the time of their divorce. Several years later, the mother wanted to relocate to Florida with her new husband and take the kids with her. Though the court characterized both parents as being exceptional, the court allowed the move, finding that relocating to Florida was in the best interests of the children. In so finding, the court stated that while the father's bond with the children would be "inconvenienced," it would "not suffer." The court determined that the mother, with her new husband, could find more affordable housing in Florida than in Northern Virginia, and also found that in Florida she could continue to be a stay-at-home mom, which was a great benefit to the children.