The retractable dog leash was first patented in 1908, by Mary Delaney. With child custody and visitation, many a Virginia man feels like he is walking around on a leash. If you assign full physical and legal custody of your children to your former wife, how far can you stray from home?
How Short is Your Leash?
Back in the summer of 2020, police in Fairfax County corralled a 65-pound alligator snapping turtle, a critter not native to Virginia. It had slipped its leash, but at least it was still in the state. Can you slip your leash and get away, say, to North Carolina or Maryland?
Child custody has two aspects, each of which can be sole custody or shared custody:
- Physical custody — Where the child lives, and under whose physical protection, Mom or Dad (or a combination of both)
- Legal custody — Decision-making authority over religious, educational, medical, and legal matters
Giving your former wife custody of your children does not terminate your parental rights. You still have a right — a responsibility — to be part of your kids’ lives. The wording of your divorce decree or property settlement agreement determines just how far your leash allows you to roam.
If your ex-wife has 100 percent physical custody, you are the noncustodial parent normally entitled to parenting time (child visitation). A visitation schedule of some kind was created, either in the divorce decree or by mutual consent in a property settlement agreement (separation agreement).
The wording is legally binding on your ex-wife as custodial parent and you as noncustodial parent.
Say you want to move to North Carolina from Virginia. Can you still make your every-other week parenting time visits? Perhaps — maybe the kids are near the North Carolina border, you own a private plane, or you can safely drive 4 hours every other Friday after work — but in most cases, you will need to modify the existing visitation schedule.
Depending on your relationship with your ex-wife, she may or may not agree to changes. If possible, work with her to get her agreement before you mention any move to your children. She may ask for something in return, like an increase in spousal or child support, or a decrease in holiday visitation. Be ready to compromise.
If she does not agree to your out-of-state move and modifying the visitation schedule, your attorney can file a motion with the court to modify visitation. Do not expect to win many friends with such a strategy. You are, literally, asking the court for permission to see less of your children. And without the mother’s consent, to boot.
You may have legitimate changes to material circumstances that require a move to West Virginia, California, or Florida. The court, however, is not interested in what is best for you.
The court always — and we cannot emphasize this enough — always upholds what is best for your children. It’s baked into the law books: “best interests of the child.”
Child visitation law § 20-124.3 includes these two passages:
“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…
“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…”
Avoid asking the court for permission to slip your leash. Avoid looking like you want to skip out on your own kids.
What Will the Court Say?
You and your family law attorney must show to your ex-wife’s and the court’s satisfaction how you will maintain a “close and continuing relationship” with your children from an interstate distance. Part of that evidence could be improved finances that allow you to provide increased child support, thanks to the out-of-state job.
Perhaps more income means you can provide each child with electronic devices for weekly Facetime sessions, or you can afford to give them cell phones and pay their monthly plans.
What the court does not want to see is a Virginia man attempting to leave behind his paternal obligations. You are still their Dad, and you need to show the court that you want to continue being their Dad. No matter where you are, you are still responsible for child support payments.
Maybe a new visitation schedule means you take them for summers by flying them out to your new Colorado mountain home. Perhaps visitation means you will pay for the entire family to retreat to your New Hampshire cabin for winter holidays. You must show that your move out of state can be in the children’s best interest.
Contact The Firm For Men
The Firm For Men represents Virginia’s men in all aspects of family law. From child support to child custody to parenting time, we protect men’s rights and ensure healthy relationships with their children. Contact us online or telephone our Virginia Beach offices at (757) 383-9184 today.