Relocating With Children After Divorce in Virginia

This topic is part of Custody and Visitation in Fairfax and Loudoun.

In this article

1. The Notice Requirement
2. Two Different Postures
3. The Standard: The Child’s Best Interests
4. Building the Record
5. Military Families
6. Conclusion

Northern Virginia families move. A federal reassignment, a contractor’s new program, a military transfer, a remarriage, or a job offer in another state can lead a parent to ask whether the children can come along. When the other parent objects, the question goes to the court. This post explains how Virginia courts decide relocation cases, what the parent who wants to move has to prove, and how the parent who opposes the move should respond.

The Notice Requirement

Every Virginia custody or visitation order must require a parent who intends to relocate to give thirty days’ advance written notice to the court and to the other parent, along with notice of any intended change of address, unless the court, for good cause shown, orders otherwise. Va. Code § 20-124.5. Notice is not permission. It starts the process; it does not decide it.

Two Different Postures

How the court analyzes a move depends on whether there is already a custody order.

An initial custody determination. Where no custody order exists yet and one parent already lives elsewhere, the court decides custody under the ordinary best-interests factors in § 20-124.3. In Brandon v. Coffey, 77 Va. App. 628 (2023), the Court of Appeals held that no separate relocation analysis was required where the parent and child had never relocated. The trial court “decided as an initial matter where the child would reside.”

A request to modify an existing order. Where a custody order is already in place, the parent seeking to relocate with the child is asking the court to modify it. That parent must prove two things: a material change in circumstances since the last order, and that the requested change serves the child’s best interests. Bostick v. Bostick-Bennett, 23 Va. App. 527 (1996). Relocation is analyzed within that ordinary modification framework. Sullivan v. Knick, 38 Va. App. 773 (2002). A move that was already contemplated when the last order was entered, and has simply become more concrete, is not by itself a material change. Bostick, 23 Va. App. 527.

The Standard: The Child’s Best Interests

Virginia has no presumption for or against relocation. The Supreme Court of Virginia has explained that its earlier decision in Carpenter v. Carpenter, 220 Va. 299 (1979), “merely holds that before a court permits a custodial parent to remove children from the Commonwealth, it must determine that removal is in the children’s best interest.” Gray v. Gray, 228 Va. 696 (1985). The Court of Appeals has rejected tests used in other states that shift the burden between the parents: “The rule in Virginia, as dictated by Carpenter and Gray, merely states that the move will be allowed if the trial court determines it is in the best interests of the children.” Simmons v. Simmons, 1 Va. App. 358 (1986).

The benefit must run to the child

A new job, a higher salary, or a new marriage may matter a great deal to the parent who wants to move. In a relocation case, those benefits count only if the move independently benefits the child. A benefit to the relocating parent may be weighed “only if the move independently benefits the children.” Cloutier v. Queen, 35 Va. App. 413 (2001). Virginia does not presume that what is good for the custodial parent is good for the child.

Substantial impairment of the other parent’s relationship

The court also asks what the move will do to the child’s relationship with the parent who stays. Relocation should be permitted where it will not substantially impair that relationship, weighed together with the benefit of the move to the child. Scinaldi v. Scinaldi, 2 Va. App. 571 (1986); Goodhand v. Kildoo, 37 Va. App. 591 (2002). Distance alone should not defeat a relocation “except where the benefits of the relationship cannot be substantially maintained if the child is moved away.” Petry v. Petry, 41 Va. App. 782 (2003). A workable long-distance schedule, with extended summer and holiday time, regular video contact, and a fair allocation of travel costs, can be the difference.

The burden stays with the parent who wants to move

The parent seeking to relocate bears the burden of proof. Cloutier, 35 Va. App. 413. That burden does not shift to the other parent to disprove impairment once the issue is raised. Stockdale v. Stockdale, 33 Va. App. 179 (2000), aff’d, 262 Va. 275 (2001).

The statutory factors still govern

The court must consider the factors in § 20-124.3, and its findings must address them. Two factors carry particular weight in relocation cases. The first is the role each parent has played and will play in the child’s upbringing. A parent’s historic role is weighed as predictive of future conduct. Petry, 41 Va. App. 782. The second is each parent’s willingness to support the child’s relationship with the other parent. A child’s own preference is considered, but it is “but one factor” and does not control. Goodhand, 37 Va. App. 591. For more on how a child’s views reach the court, see A Child’s Preference in Virginia Custody and Relocation Cases.

Building the Record

For the parent who wants to move, the case is built on specifics:

• the concrete benefits to the child: schools, housing, extended family, health care, and stability;
• evidence that those benefits are real and not speculative;
• a detailed long-distance schedule; and
• a showing that the relocating parent will support the child’s relationship with the other parent.

A general statement that the move is a good opportunity rarely carries the burden. For sample long-distance and relocation provisions, see Crafting Effective Custody Agreements.

For the parent who opposes the move, the case is built on the depth of the existing relationship and the realistic effect of distance:

• the parent’s involvement in school, activities, and daily care;
• the child’s ties to the community; and
• the practical limits of the proposed long-distance schedule.

Where the move was contemplated when the last order was entered, the threshold material-change question should be raised first.

Military Families

Deployment is not relocation. Virginia has separate statutory provisions for custody and visitation when a parent is deployed, beginning at § 20-124.7, and a deployment-related petition is expedited on the docket under § 20-108. For permanent-change-of-station moves and the other issues that arise in military divorces, see our page on military divorce in Virginia.

Conclusion

A relocation case turns on evidence about one child and two homes. The legal standard is settled: the move must serve the child’s best interests, the benefit must run to the child, and the parent who wants to move carries the burden. For the broader framework, see our guide to Virginia child custody and visitation. For how we handle these cases, see our page on custody and visitation in Fairfax and Loudoun.

This article provides general information about Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. The application of the law depends on the specific facts of each case.