The Virginia Court of Appeals recently reversed the trial court in Garner vs. Ruckman (VLW 011-7-371 (UP) when the Circuit Court erroneously applied an “actual harm” test instead of the “best interest of the child” test to revoke mother’s custody when she relocated to Pennsylvania with the child. Mother had sole physical custody, and father had weekly visitation, following the parties’ divorce based upon their mediated agreement. However, within months of the divorce the mother was faced with financial difficulties. Her income had declined and father was not paying child support regularly. She feared eviction and did not have a dependable car. To improve her financial position and better support her family, Mother moved approximately two and a half hours away to her mother’s home in Pennsylvania. On father’s motion, temporary physical custody was awarded to father by the Juvenile and Domestic Relations District Court for “school purposes”. The JDR court eventually ruled that the mother’s move was not in the child’s best interest and awarded physical custody to father. When the mother appealed to the Circuit Court, the Circuit Court determined that there was no harm to the child by being in father’s custody, and that the mother’s move did not benefit the child.
The Virginia Court of Appeals disagreed – finding that the mother’s evidence did prove that the relocation was in the best interest of the child. In addition, it found that the Circuit Court had not show that it considered all statutory factors in assessing the child’s best interests.
The Virginia Court of Appeals noted that the mother had been the child’s primary custodian since birth; the child had a close relationship with his half brother and two stepsisters; that the mother had, since moving to Pennsylvania, remarried and was now a stay-at-home parent; and that the mother expressed concerns about the child’s safety when with the father, stating that he did not use a booster seat and did not seek medical attention when the child had a nosebleed and cold sores on his mouth. In addition, the record indicated the father had a girlfriend, a history of instability, a criminal record, a previous drug addiction, an anger-management problem, and was unemployed.
Other important factors considered were that the mother had encouraged the child’s relationship with his father by agreeing to expand visitation in 2010, despite the fact that the father denied mother the chance to see the child Christmas Eve and Christmas Day. The Virginia Court of Appeals pointed to case law that suggests that judges may consider benefits provided after the relocation as also working to the child’s benefit.
If you or someone you know is considering a relocation outside of the Commonwealth of Virginia with a child or children, be sure to consult with an attorney specializing in child custody law to avoid the lengthy disruptions in your children’s custody that were experienced by this family! Attorney Lori A. Michaud has been practicing family law for over 13 years!
