Last updated on May 2nd, 2019
Since custody and child support orders come from state courts, many Virginia residents believe they cannot move out of that court’s jurisdiction without violating the order.
However, this is not always the case.
In fact, while you may have to change the order a bit to accommodate the move, the order itself is not jeopardized when one parent moves to a different state.
In this article, we’ll talk about a few common areas of confusion that may affect your custody order if you or your co-parent move to another state.
Virginia Custody and Moving to Another State: The Basics
Virginia custody orders generally do not prohibit parents from leaving the state where the order was signed. This is because Virginia has signed an agreement with most of the other states to honor custody orders across their borders.
This law is called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The UCCJEA states that custody orders issued by one state are enforceable in the other 49 states (all but Massachusetts). This law enables parents to move freely across state borders, provided they take a few minor restrictions into account.
Moving Out of State with a Child
If you want to move out of state with a child, what you do will depend on the exact details of the custody order you should (hopefully) already have in place.
Essentially, the first thing you should do is check the terms of your order to see what it says about relocation.
Depending on the court that originally issued the order, the requirements for relocating with a child may be different. For example, you may have to perform a few tasks before you move, such as:
- Giving notice to the other parent.
- Getting the other parent’s (or the court’s) express consent.
- Making sure you don’t relocate outside of a certain distance from the other parent.
- Making sure you comply with any other requirements of your custody order.
You’ll want to make sure you follow the terms of your custody order as closely as possible during your move.
Or, if you know that you cannot do so (such as if you’re moving a significant distance away), you should take steps to modify the terms of the order before you move so that you aren’t in violation.
As noted above, Virginia law doesn’t prohibit you from relocating to another state. However, you do have to give your co-parent at least 30 days notice before you move.
If you share custody with the other parent, you must also show that the relocation is in the best interest of the child.
A Virginia court won’t prevent you as a parent from relocating, but they may prevent you from taking your minor child with you if the other parent objects (as detailed below).
If you see to relocate with your child, as with any custody issue in Virginia, a court will analyze whether the move is in the child’s “best interest.” There are a lot of factors that will go into this “best interest” analysis.
In the context of a move, a court will look at things like:
- Who is the primary caretaker?
- How involved is each parent in the child’s life?
- How much will a move upset the schedule of the child, such as their attendance at school?
- How much will a move upset the child’s support system, such as their contact with regular caretakers and family members?
- Was there a “change in circumstances” that caused the move? For example, did one parent get a new job that will bring in more money, potentially increasing the child’s standard of living?
Once you move, if you retain custody, you can take a custody order from one state and register it in your new state. This is where the UCCJEA comes in.
Where will my child reside if I move?
This decision is largely up to the judge who is overseeing your custody order.
If you share custody with your co-parent, and you can’t decide amongst yourselves which school district would be better, the court will typically decide which parent the child remains with.
Further, if the judge feels that your decision is not in the best interests of the child, they may adjust the custody order accordingly.
As with all family law matters involving children, your interests as a parent are less important than the well-being of your child. The judge will always base their decision on what they believe to be in the child’s best interest.
The“best interest” test, however, is subjective. The court may consider many different factors, such as school district quality, distance from other relatives, economic conditions, etc.
If my co-parent moves, will I lose my child?
For parents that share custody, relocation may mean losing visitation time with your child. Consider the following example:
Frank and Mary share custody of their son, Sammy. Frank and Mary both live in the city of Richmond, so Sammy spends half of his week with Frank and half with Mary. However, Mary suddenly gets a job in Maryland and decides to move.
In this specific scenario, the Richmond County court could determine that it is in Sammy’s best interest to go with Mary to Maryland.
This is because Sammy may have better access to education or a higher standard of living there. For Frank, this means that Sammy cannot live with him for half of each week since Mary’s new home is so far away. Further, he may have to travel to Maryland just to see his son.
In the example case above, the court decided that Sammy would have a better quality of life by living with Mary, and as a result of that decision Frank would lose visitation time.
However, Virginia law also provides a few defenses for parents such as Frank in this situation.
What laws prevent me from losing my child in this situation?
As noted above, the “best interest” test is designed to consider the child’s needs, not the parent’s. If it is against the child’s best interest to remain with you, you will likely lose joint custody of your child.
However, courts also tend to modify custody agreements if one parent moves far away.
A modified custody agreement in this situation may include longer summertime visitation, or more weekends in a year. Typically, a court will try to even out the visitation time for parents that shared joint custody before a relocation.
Remember that, in Virginia, the relocating parent must give 30-day written notice to you before they move. If they move away without giving you written notice, they are likely in contempt of court.
What About Child Support?
The UCCJEA only pertains to custody orders, not child support.
However, a similar law, the Uniform Interstate Family Support Act (UIFSA), enables parents to enforce child support agreements even if the parents live in different states.
UIFSA creates several pathways for a parent to enforce their child support agreement.
However, to use these pathways the child support agreement must be a formal, binding child support agreement. Families that create informal, out-of-court child support agreements cannot enforce their agreements using UIFSA.
Similarly, a parent who owes child support cannot simply relocate out-of-state to avoid the payments.
In this scenario, the parent who is owed the money could file for an enforcement action in either their home court or the in the court of the jurisdiction where the other parent lives.
My Co-Parent Moved Out-of-State and I Can’t Find Them!
If you cannot locate your co-parent or child, there are two things you should know.
The UCCJEA makes custody orders enforceable in all states except Massachusetts. This law was enacted to prevent non-custodial parents from kidnapping their child and moving to another state where there was no binding custody order.
For example, if a Virginia court granted you sole custody of your child, your co-parent cannot take your child to Maryland without your consent. Doing so would be parental kidnapping, which is illegal.
If your co-parent kidnaps your child and goes to another state, you should call the police.
If you cannot find your co-parent to file an enforcement action under UIFSA, you may still have other options available to you.
If you know your co-parent’s employer, you can forward the employer a copy of the child support order. The employer may withhold wages from the other parent’s paycheck to satisfy their child support obligations.
Since this involves a garnishment, you may want to hire an attorney to help you with that process.
If you do not know the whereabouts of your co-parent or their employer, you should see a family attorney to discuss other options.
Protecting your Custody Order
The first step towards protecting your rights is to hire an attorney. The custody and child support orders need to be sanctioned by the court for either UCCJEA or UIFSA to protect them across state borders.
An experienced family law attorney can ease the intensity of custody disputes and child support collection. Without an attorney to help you navigate the choppy waters of family law, you could end up in contempt of court or guilty of parental kidnapping.
Further, an attorney can help make sure that you protect the rights given to you in the custody or child support agreement.
Agreements mean nothing if no one enforces them, so you’ll want to take steps to document and report any action by your co-parent that violates an agreement. This is especially true for parents who are living in different states.
Sharing custody of your children will not prevent you from moving to another state. However, any potential move may trigger a number of legal consequences that you need to prepare for.
To help ease the process and make sure all your rights are protected, you should hire an experienced family lawyer.