The U.S. Department of State’s Bureau of Consular Affairs has an unusual section, the Office of Children’s Issues, that oversees international parental child abduction. Few matters in a man’s life could be more serious than a problem requiring the full weight of the State Department. Your ex-wife can only take your children out of Virginia if she is not in violation of, among other things, the Hague Abduction Convention.
Custody in Virginia: Physical vs. Legal
A divorce that involves children necessarily involves two types of custody:
- Physical custody—in whose home will the children reside?
- Legal custody—which parent will make decisions for the good of the child, and be legally responsible for the child?
While legal custody often falls to one parent or another (though joint legal custody exists), physical custody is usually shared, as joint custody. If the joint physical custody specifies, say, a plan for them to spend every other weekend with your ex, you cannot stand in the way of that.
This also means your ex cannot keep you from your children, nor can she take them out of Virginia permanently in violation of the decree, preventing you from enjoying joint custody.
The Custody Road Map
A divorce decree or custody order in Virginia includes guidelines, signed off on by a judge, for handling everyday matters involving family members such as children. One of these normal complications is upbringing and custody of children resulting from the dissolution of a relationship.
Usually, whatever is locked down in a decree or custody order must be followed, and often the divorce decree stipulates where the children will be raised. Changes to arrangements must be mutually agreed upon, through a post-judgment stipulation that spells out a relocation by one (or both) of the parents.
The Child’s Best Interest
The key question from the court’s perspective with any change to the custody arrangement is simple:
Is this in the best interest of the child or children?
If your ex wants to take the children from Virginia to Oregon to begin life anew on a marijuana farm, the Virginia judge might look suspiciously at such a move. If the move is to a better-paying job that provides obvious, independent benefits to the children (better access for the child to quality healthcare, increased food security, proximity to the mother’s relatives), a judge might amend the decree.
If your ex says she is moving to Los Angeles to take a high-pressure, high-salary job that leaves little to no time for the children, a judge is unlikely to approve. The benefit of a relocation must be to the children, not your ex.
Your Chance, Your Objection
Your ex will have to file a motion to change the existing custody agreement, giving you a chance to object. A judge will hear both sides of the issue and rule after that. You need the services of a lawyer to make your objection in a legally appropriate way, and to have your concerns heard.
Spur of the Moment?
Your ex cannot, in the heat of a disagreement with you, simply say she is taking the kids to Oregon and start throwing suitcases in the Toyota. The Code of Virginia (Title 20, Chapter 6, § 20-124.5, if you want to completely fine-toothed about it) says:
In any proceeding involving custody or visitation, the court shall include as a condition of any custody or visitation order a requirement that thirty days’ advance written notice be given to the court and the other party by any party intending to relocate and of any intended change of address, unless the court, for good cause shown, orders otherwise.
The thirty days’ advance written notice is in place to prevent emotions from ruling in an already emotionally charged atmosphere. The notice is not given only to you, the Dad, either; it goes to the court and you. At that point, you and your attorney confer and file your objection to the move.
International Incident: Taking Children Overseas
The State Department takes very seriously the welfare of our most vulnerable United States citizens—children—who are taken out of the United States by a parent in violation of the other parent’s rights. This is where the Hague Convention on the Civil Aspects of International Child Abduction comes into play.
If your ex takes your children away from their “habitual residence” to another country in violation of the Virginia decree, you and your attorney may need to file a Hague Application for Return. This may sound as menacing as a grocery list, but it carries far more force overseas than any paper coming from Virginia’s courts.
You Don’t Have to Be an Expert: Call the Custody Attorneys at The Firm For Men
No one expects you to be an expert on international law, or even domestic Virginia law. Turn to The Firm for Men for expertise and sound advice on child custody. Contact The Firm for Men today to be connected to an attorney who can help alleviate your concerns about keeping your most precious parts of your life—your children—close to you. Call our Virginia Beach office today at 757-383-9184 or get in touch online. As a family law firm serving the men of Virginia Beach, Chesapeake, Norfolk, and beyond for over a decade, we’re passionate about helping fathers. We’re passionate about helping you.