Custody disputes commonly follow marital divorce proceedings. In determining custody, Virginia courts implement a best interests of the child analysis, pursuant to Virginia Code § 20-124.3. Recently, the Court of Appeals of Virginia was asked to decide whether living-out-of-state was in the best interest of the child, if the prospective custodial parent already lives out of state.
This question was presented in Brandon v. Coffey. Brandon and Coffey had a 12-year-old child in common, but they did not marry or have a formal custody agreement. The child previously lived with Cofffey in several places, including Maryland, Virginia, and out of the country. At the time of this lawsuit, Coffey and the child resided in New York. Coffey intended to move, again, to England, but Brandon opposed the relocation and filed a petition seeking custody. The trial court ruled that Brandon had a more limited relationship with the child and awarded primary custody to Coffey.
On appeal, the Virginia Court of Appeals ruled “a relocation analysis of this matter is not required, as Coffey and the child never relocated” because “Coffey had already moved to New York and had never lived in Dundas, [Virginia].” Further, several other factors weighed in favor of granting custody to Coffey, including that Brandon “had prevented the child from seeing Coffey” and that during a period when Coffey had custody of the child, the child “developed school-related issues.” Most notably, the trial court found that “the child appeared to ‘always come first’ in Coffey’s life.”
The Court of Appeals also contrasted this case from prior cases where parents seeking custody intended to, but had not yet, moved out of the Commonwealth. See de Haan v. de Haan, 54 Va. App. 428 (2009); Petry v. Petry, 41 Va. App. 782 (2003). The court explained that trial courts cannot complete a relocation analysis if the child is not facing relocation from within Virginia to an out-of-state location. Once the child resides out-of-state, the Virginia courts do not compare the various out-of-state locations.
In custody determinations such as these, courts must delicately balance a multitude of factors set forth in Virginia Code § 20-124.3. However, Brandon v. Coffey clearly establishes that relocation shall not be considered if the custodial parent and child already reside out of state.
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