The Virginia Charter of 1609 designated Virginia as all land between the 34th and 40ths parallels from the Atlantic to Pacific Oceans. That’s a huge swath of land. Philadelphia, PA and Boulder, CO both lie on the 40th parallel, with the 34th parallel passing through Columbia, SC and Los Angles, CA. All of that land would have been Virginia and would have made parental relocation within Virginia a snap. But modern-day Virginia lies between the 36th and 40th parallels and ends at West Virginia and Kentucky. Moving out of state with your child after divorce demands thoughtful, respectful planning.

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Can You Move Out of Virginia With Your Child After Divorce?

Divorce is not a prison sentence. You gain freedoms; you don’t lose them. So you can move from the Commonwealth after separation and divorce, you just have to play by the rules (er, laws).

The easiest, smoothest way to set out on your great adventure and exit the state with your kids is to gain the written approval of the children’s mother.

To pull that off, try this: reverse roles and imagine how you would best like to be approached about the same topic.. Think:

  • You’d want plenty of notice
  • You’d want to be heard
  • You’d want to feel respected
  • You’d want accommodations to maintain close contact with your children
  • You’d want input into the new custody and visitation arrangements

If you would like all that, then do all that for your kids’ Mom. Introduce the subject early in your planning. For the first chat with your kids’ mother, arrive prepared. Talk to her in a quiet setting that allows her to focus on your plans. Avoid making your plan sound final; expect and encourage the kids’ Mom to offer her own ideas.

If you are moving out of state for gainful employment, both of you must understand you cannot negotiate the move itself.  A reasonable mother will accept that life moves on, you have a career, and the financial support of your children depends on that career.

The question is not, then, do you have to leave the state with the kids? The question is, how will you two arrange for continued, healthy relationships between your children and both parents?

Who Pays the Costs of Parental Relocation?

In all likelihood, the relocation will be nearly as exhausting as that first year of parenthood. Be willing to give up a lot to enjoy having your children with you after relocation:

  • You may have to use up every available PTO or vacation day taking the children to see their mother
  • You will have to revisit the parenting time schedule
  • You may have to spend additional funds on attorneys to prepare updated visitation plans
  • You may incur major costs in transporting, boarding, and feeding kids on the road for both the initial relocation and periodic trips back to Virginia for parental visits

A court is unlikely to burden your ex-wife with additional costs for your relocation. Expect to shoulder the expenses of returning the children for visits, holidays, or special events.

You can offer to pay for your ex-wife’s transportation out to your new location, with the understanding you will also pay for a residence hotel for her extended stay. You can also reexamine spousal support as a way to show good faith.

Virginia’s 30-Day Notice Rule for Relocation

The Code of Virginia is okay with an interstate, post-divorce move as long as you give 30 days’ notice to your ex-spouse and the courts. Section 20-124.5 of Virginia Code Title 20, Chapter 6 stipulates:

  • 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 court may require that the notice be in such form and contain such information as it deems proper and necessary under the circumstances of the case.

The law tells us you cannot win the lottery on Monday and move to Los Angeles with your kids on Wednesday. Planning is a prerequisite. You and your attorney will prepare court papers, inform the kids’ mother, and follow the law to the letter.

Please note the vagaries of the Virginia Assembly: “The court may require that the notice be in such form and contain such information as it deems proper and necessary under the circumstances of the case.” More about that later.

Do Not Leave Virginia Without Proper Notice

Under no circumstances leave Virginia with your children without properly notifying the courts or your children’s mother. Taking your own children after a divorce and without legal permission constitutes parental kidnapping. Sticking the word “parental” in front of “kidnapping” in no way softens the criminality. Any way you look at it, you are committing a Class 2, Class 5, or Class 6 felony under Code of Virginia § 18.2-47.

How Poor Communication Can Hurt Your Relocation Request

A sure way to ruin your chances of a smooth getaway with your kids is to behave poorly, treat the kids’ mother disrespectfully, or set up a pattern of poor communication.

The law has that vague, open-ended dictum that the court can require your notice of intent to relocate to contain all sorts of information. If your ex-wife has returned to court several times to force you to follow the final divorce decree and a parenting plan, do not count on the court to give you an easy time exiting the state.

The court will definitely look at the status of the post-divorce relationship you built with your kids and with your ex-wife as it determines what you need to do to leave the state. If you and your ex-wife get along, you may only need rudimentary contact information such as:

  • Your new address
  • Distance from your ex-wife’s current residence
  • New email addresses and telephone numbers
  • The dates of your relocation and start of a new job

If your ex-wife can prove to the court you have a history of acting immaturely, selfishly, aggressively, or rudely, the court can require you to provide notarized letters via Certified Mail that contain all of the above details plus:

  • Your new employer’s address and contact information
  • A copy of your employment contract indicating salary
  • The children’s new school names, their addresses, telephone numbers, and names of pertinent school personnel
  • The names and addresses of new pediatricians
  • Anything the court deems “proper and necessary”

You can question that list all you want. For example, why would a Virginia court care about your new job’s salary? Some divorced Dads move to deliberately reduce their salaries and petition the court for a reduction in spousal support or child support. Such a strategy is illegal under Code of Virginia § 20-108.1. The court, concerned about the well-being of your children, may demand proof of income for the job resulting from relocation. If necessary, the court can impute your income.

Why provide the court details about the children’s schools? Perhaps you are trying to pull them out of Virginia schools and not re-enroll them as required under compulsory attendance laws.

Pediatricians? What if the court worries about a history of domestic violence? What if you demonstrated an unwillingness to provide basic healthcare to your own kids?

Be your own best advocate throughout separation and divorce, and demonstrate through your words and actions that you are a trustworthy, dedicated parent.

How Moving Out of State Can Change Custody and Visitation

Your move out of state with your children will probably require changes to child custody arrangements. Begin by looking at the final divorce decree and your existing parenting time schedules. Consult with your family law attorney to see how circumstances affect the decree.

You could luck out. Say you move to one of Virginia’s five bordering states (Maryland, North Carolina, Tennessee, Kentucky, and West Virginia) or the District of Columbia and your ex-spouse lives near a border. Then visitation could be relatively easy.

Perhaps you must relocate farther from Virginia. Say you must move to Oregon. Then each of these issues will need to be reopened:

  • Physical custody — You may need to move from 50-50 shared custody to you having sole physical custody with your kids’ mother as a noncustodial parent
  • Child support — Responsibility may shift if your income increases sufficiently to reduce your wife’s financial burden
  • Parenting time schedules — Be flexible in rearranging visitation around school vacations; rehash holidays and family functions; consider alternatives like virtual parenting time

Be proactive with necessary changes. Examine options, present alternatives, be willing to compromise, and always keep the best interests of your children in mind.

Your attorney can guide you in presenting to the court how your material change in circumstances is beneficial to the children. This can be true even if parental contact with their mother becomes mostly virtual, due to physical distance.

Talk to a Virginia Family Law Attorney Before Relocating

Begin all of your relocation planning by connecting with your family law attorney. If your lawyer who handled your separation and divorce was less than satisfactory, find a better Virginia law firm to unravel the complexities of relocation.

Explain your need to relocate, your desire to take your child with you, and the reasons everything you are doing is for the benefit of your children.

Find out from your attorney what kind of unbiased evidence the Virginia court will want to make your relocation as smooth as possible. Your attorney is experienced in all aspects of Virginia divorce, including relocation issues, child support, and child custody.

The Firm For Men handles work like parental relocation every day. Contact us today or call our Virginia Beach office at (757) 383-9184 to arrange a consultation.