Say you are the primary physical custodian of your boys, who have lived their entire lives in their hometown and are now 11 and 14 years old. Your kids are doing great. Your kids have a great relationship with you. Your kids have a great relationship with their father, whom you divorced about 5 years ago. Your kids have a nice relationship with your current husband, whom you married soon after your divorce 5 years ago. You have an okay relationship with your ex-husband, although you still have negative feelings towards him stemming from your past relationship. Then, unexpectedly, your current husband’s employer removes his local position, forcing him to take a similar position out of state in Ohio. Can you just move with the kids to Ohio? What do you risk? Well, unfortunately for you, you risk losing custody of your children.
In Lingsch v. Walker, Case No. CL13-1267 (Roanoke Cir. Ct.), this exact scenario faced the trial court. In that case, however, the mother did in fact relocate with the children to Ohio. She, thereupon, sought the court’s blessing that she maintain primary physical custody of the children after her relocation, while the father fired back by seeking entry of an order awarding him primary physical custody of the children. Unfortunately for the mother, her relocation required the court to not only consider what would be in the best interests of the children, but whether the relocation itself would be in their best interests and whether the relocation would substantially impair the beneficial relationship between the children and their father. The trial court held that she failed to meet this difficult burden of proof.
The trial court stressed the fact that the children had longstanding ties to their hometown that would be almost impossible to replicate in their new hometown, including ties to school, church, and the greater community through their participation in various extracurricular activities. The court added that the children’s close relationship with their very involved father would be substantially impaired by the relocation given expert testimony from a custody evaluator that the mother’s “perspectives on her ex-husband are of such a negative nature that they may preclude developing an effective and stable co-parenting plan.” As such, the trial court felt compelled to award the father primary physical custody of the children despite there being apparently no evidence that the mother was anything but an excellent primary physical custodian over the past 5 years.