WV’s Child Custody Relocation Statute: A Critical Issue for Parents and Children
Published to: child custody, Family Law, Harrison County, Marion County, Perspectives of a Small Town Lawyer, Randolph County, relocation, substantial majority of parental time, unbundling, Unbundling of Legal Services
on June 19, 2018 11:37 pm
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I met with a new client recently because she had encountered an obstacle to her plan to relocate the parents’ two-year-old child several states away. The father had objected to the mother’s notice of relocation. I was surprised when she said that my blog had only an oblique reference to “relocation of a child”. So, here is a “quick fix” and my serious warning:
1. The good news for the parent who objects to their child moving away, you now have a fighting chance. The good news for the parent who desires to move is that you can make a reasonable prediction of the eventual outcome if you do your homework.
2. The WV Relocation Statute, WV Code 48-9-403, is rather straightforward, but it has significant potential pitfalls for the parent on each side of this serious issue. Here’s the link: https://tinyurl.com/ycvtvb7q .
3. The key question is whether the proposed move will “significantly impair” the other parent’s rights under the current court ordered parenting plan. You probably should stop for a moment and read the statute cited above. If you are in my blog, just click the hyperlink, but please return.
4. When I began my practice, motions to relocate with the child were routinely granted to “the primary caretaker”. I will not recite the history here, but until recently, the moving parent could still expect to take the child to the new home if she had been awarded “the substantial majority”, of parenting time, that is 70% of overnight time.
5. “The 70% rule” allowed a parent, usually the mother, to have a legal “presumption” in favor of the move so long as it was in good faith for a legitimate purpose. The statute lists examples. If the move is for something other than one or more of the causes listed, the presumption in favor of permitting the move disappears, and “best interests of the child” becomes the standard, as it is if the moving parent does not have the “substantial majority of parenting time”.
6. If you file the notice, and the other parent does not object, you can expect to be able to move, but you will need to renegotiate a parenting plan. If you file your own notice, using common sense, and the other parent objects, you are likely to learn your notice is inadequate.
7. As I reread the statute today, I am reminded that it is nuanced. You should read it out loud, word for word, with the attorney, and apply it to your situation. Failure to do so can have dire consequences.
8. I wrote about WV’s new child custody law back in April: http://hunterlawfirm.net/brand-new-wv-custody-alimony-law/ . This law does not revoke or modify the relocation statute, but I noted then that in removing the “caretaking functions” history as a major component in determining residential care (custody), the legislature appears to be swinging the pendulum in the direction of the fathers.
9. I have anecdotal information that it is becoming harder for the traditional “primary residential parent” to be able to pick up and move with the child. I expect to see an increasing number of contested proposed moves.
10. So, my best advice is either retain record counsel and file a notice of relocation and petition to modify custody at the same time or consider finding a “legal coach” or consultant to assist you in preparing you notice. This is a time when using this option of “unbundled legal services” may be a good option, or perhaps it is your only option if you are short of funds. For more on “unbundling”, just type “unbundled” into my blog’s search engine. www.hunterlawfirm.net/blog/
11. I believe the time that the custodial parent could simply file the notice of relocation and expect to be permitted to move the child has passed and that these moves should be carefully planned and notices of relocation carefully worded.
This post was written by Burton Hunter