Changing a Parenting Plan When a Parent is Moving to a New Location

Last Updated On: 3/21/2016 6:50:37 PM

Do I Have To Change My Court-Ordered Parenting Plan When I Move To A New Address? 

You do have to change your Parenting Plan when the move would “significantly impair” the other parent’s rights.

Suppose you are staying in the same general community.  You probably don’t have to change your Parenting Plan.  If the other parent can still follow the same schedule, then the Parenting Plan can remain in place.  

But suppose you are moving a substantial distance away.  Now it won’t be practical for the other parent to follow the existing Plan.  You’re going to have to modify the Parenting Plan.

What If The Other Parent Doesn’t Have Any Time With The Children Under The Current Parenting Plan? 

You will not have to do anything.  If the other parent does not have any rights or responsibilities, then your move will not “significantly impair” that parent’s rights or responsibilities.

Do I Have to Change the Parenting Plan For A Temporary Move? 

If your Relocation will be shorter than 90 days, then you don’t have to get a full new Parenting Plan.  

You should notify the other parent of the temporary move.  You should try to work out temporary arrangements.  The goal is to assure that the other parent can still have a similar amount of time with the children as before, even though you are temporarily in another place. 

When you move back to your home community, the original Parenting Plan will go back into effect.

If A New Parenting Plan Is Needed Due To Relocation, What Is The Procedure? 

If your move will “significantly impair” the other parent’s time with the children, for more than 90 days, here is a summary of the steps you must follow. 

  1. Send a NOTICE OF RELOCATION to the other parent, at least 60 days ahead of time.  (More information on this later.)
  2. Try to work out an agreed new Parenting Plan with the other parent.
  3. If you cannot agree on a new Parenting Plan, you must go back to the Family Court to decide how the Parenting Plan should be revised.  (More information later on how to do this.)
  4. If possible, the Family Court will try to maintain the same proportion of time for each parent, even if it is arranged in a different way.  If it is not possible to maintain the same proportion of time for each parent, the Family Court will make whatever changes it feels are in the Best Interests of the children. 
  5. No matter what changes are made, the Family Court will also decide how to divide the costs of transportation and communication between the parents.

What Has To Be In A “Notice Of Relocation”?

The “Notice of Relocation” must contain the following five pieces of information:

The date on which you expect to move

Your address and contact information after the intended move;

The specific reasons why you are moving to that location;

Your proposal for how the Parenting Plan should be adjusted because of your move; and

Information for the other parent as to how he or she may respond to you about the proposed relocation or modification of the Parenting Plan.

To make this easier, the Supreme Court has a form on it’s web site that you can use if you want.  (You don’t have to use this exact form. But however you do it, your Notice of Relocation must have all five of the required pieces of information.)

Click here to download the court system form.  

The Supreme Court web site also has Instructions for using the form.  Click here for the Instructions.

Where Do I Send The Notice of Relocation?  

Send the Notice of Relocation to the other parent AND file a copy with the Court Clerk’s Office.  Family Court Rule 52 says that the parent who is moving “shall file with the Circuit Clerk” and send to the other parent a Notice of Relocation.

Even if you and the other parent have reached an agreement, you still need to notify the Family Court. You cannot make changes to your Parenting Plan, even if you both agree, without approval from the Family Court.

What If The Need To Move Comes Up Suddenly, And I Can’t Give The Required 60 Days of Advance Notice? 

Give as much advance notice as possible.  In the Notice of Relocation, explain why the timing of the move was out of your control.  Show that you are giving as much advance notification as possible under the circumstances.   

If the Family Court agrees that it wasn’t your fault, then shorter notification will not hurt you.  

But don’t play games with the timing of the Notice of Relocation.  If the Family Court feels you could have given proper notice but didn’t, you might lose a lot in a new Parenting Plan.  That is within the power of the Family Court.

I’ve Sent A Notice of Relocation.  But We Can’t Agree On How To Change the Parenting Plan. What Now? 

You need to ask for a hearing with the Family Court Judge.  To do this you must:

File a written request for hearing with the Circuit Clerk, 

Send a copy of the request for hearing to the Family Court Judge, and 

Send a copy of the request for hearing to the other parent.  

Within five days of getting the request for hearing, the Family Court should mail out an order setting a date for hearing on the Relocation problem.

If there is an immediate emergency situation, either parent can request an “expedited hearing” to take place as soon as possible.  Explain in your request why you feel there is an emergency.  The Family Court Judge will decide whether to hold an emergency hearing.

I’ve Gotten A Notice of Relocation, And I Don’t Agree With It.  What Now? 

You need to ask for a hearing with the Family Court Judge.  To do this you must:

  1. File a written request for hearing with the Circuit Clerk, 
  2. Send a copy of the request for hearing to the Family Court, and 
  3. Send a copy of the request for hearing to the other parent.  
  4. Within five days of getting the request for hearing, the Family Court should mail out an order setting a future date for hearing on the Relocation problem.

If there is an immediate emergency situation, either parent can request an “expedited hearing” to take place as soon as possible.  Explain in your request why you feel there is an emergency.  The Family Court Judge will decide whether to hold an emergency hearing.

What Will The Family Court Look At In A Relocation Dispute?  

The absolute number one most important factor is whether there is a good reason for the move.  

If the Family Court Judge believes the move is really an attempt to cut off the other parent’s access to the children, this will not end well for you. You can be ordered to pay some or all of the costs of transportation and communication, in order to carry out parenting time. 

The Family Court can even transfer primary parenting of the children to the other parent.

How Does The Court Define “Good Reason” For A Move?  

There are a three considerations.  The proposed relocation must be:

  1. In good faith; AND
  2. For a legitimate purpose; AND
  3. To a location that is reasonable in light of the purpose.

We will discuss all three of these elements next.

What Does “Good Faith” Mean? 

“Good Faith” means reasons for moving that would cause most ordinary reasonable people to move.  That will be enough to eliminate suspicion that you are just trying to hurt the other parent. 

If you are giving reasons that wouldn’t be enough to cause most people to disrupt their lives with a move, then the Family Court may not approve.

What Does “Legitimate Purpose” Mean? 

The West Virginia statute gives a pretty good list of things that normally would be considered as a “Legitimate Purpose”

  • to be “close to significant family or other support networks,” 
  • for “significant health reasons,” 
  • to protect the “safety of the child or another member of the child's household from significant risk of harm,” 
  • to pursue a “significant employment or educational opportunity,” or 
  • to be with a spouse who is already established in another location, or who is pursuing a “significant employment or educational opportunity” in another location. 

These aren’t the only possibilities for “Legitimate Purpose.“  But they give you a good sense of what the Family Court wants to see.

What Does “Location That Is Reasonable in Light of the Purpose” Mean?  

Let’s start with an example.  Suppose you’ve decided to get training as a Certified Nursing Assistant (called CNA).  Now suppose you’re moving from West Virginia to California to enroll in a CNA training program. 

Whoops.  CNA programs can be found pretty much anywhere in the country.  There’s probably one in the county where you live now.  The Family Court probably will say that moving to California is not a reasonable choice.  You could accomplish the same purpose, without disrupting the Parenting Plan, by going to a CNA training program close to home.

Here’s another example.  You’ve decided to look for a better job. You don’t have a new one lined up yet, you’re just looking.  You want to move from West Virginia to Florida, and start looking for the same kind of job you have in West Virginia.  

Whoops, that’s not likely to work either.  There’s nothing wrong with looking for a new job.  But the kind of job you’re seeking can probably be found in lots of places much closer to your current home. The Family Court might decide that the location you’ve chosen is not “reasonably necessary” to accomplish the purpose you’ve described.

The obligation of the Family Court is to be fair to both parents and to assure that the children have real parenting time with both of the parents they love. Normally neither parent will be in complete control of what happens.

The parent who is moving will not have complete freedom to do whatever they want.

The parent who is NOT moving will not have “veto” power over the move.  

Do I Have To Show The Court That I Have Good Reasons For Moving?  

The parent who is moving has the obligation of showing that you have Good Faith, and Legitimate Purpose, and Reasonable Location. 

If there is a dispute, you should be prepared to give the Family Court evidence to back up what you say.

If you say you’re moving because your job was transferred, you need to bring some written proof from the employer.

If you say you’re moving for “significant health reasons,” you need to bring some written verification from a health professional.

If you say you’re moving to be with “significant family,” be ready to show that.  You’ll need to prove who they are, how long they’ve lived in the other location, whether there are other family members near your current location, and so on. 

Like all court cases, just because you say it doesn’t make it true.  The Family Court Judge will want to see evidence that demonstrates the truth of what you say.

What If I Already Have Most Of The Parenting Time.  How Does The Family Court Consider That?   

The percentage of parenting time is a big factor for the Family Court to consider.

Suppose the parent who wants to move already has 70% or more of the parenting responsibility.  

If the move is in Good Faith, for Legitimate Purpose, and to a Reasonable Location, then the Court should approve the move.  Some changes or re-arrangement of the Parenting Plan may be needed.  But the goal of the Family Court will be to preserve the same proportion of time for each parent as before the move.

But suppose neither parent has more than 70% of the parenting.  Maybe it was 50/50.  Maybe something different, but neither parent had 70% of the time with the children.

If the move is in Good Faith, for Legitimate Purpose, and to a Reasonable Location, then the Court will reallocate the division of custodial responsibility.  This will be done based on what the Family Court thinks is in the best interest of the children.  The custodial time for each parent  may be quite different than before the move.   Even if the move is in Good Faith, for Legitimate Purpose, and to a Reasonable Location. 

If the move is NOT in Good Faith, for Legitimate Purpose, and to a Reasonable Location, then the Court can make any change it believes is good for the children.

What If the Family Court Decides That the Move Is Not “In Good Faith, For Legitimate Purpose, To Reasonable Location”?  

The court has a lot of choices.  

The judge could change the plan any way that seems good for the children. 

The judge could transfer full custody over to the non-moving parent. 

The judge could tell the moving parent to keep following the same Parenting Plan even after the move, no matter what it costs or how difficult it may be.  

The court could require the non-moving parent to pay the entire cost of transporting the children back to the original community for visits with the other parent.  

The judge could then hold the moving parent in contempt of court if the moving parent refuses to follow the new rules.

This is where the Family Court may come down very hard on the moving parent.  If you are not acting “In Good Faith, For Legitimate Purpose, To Reasonable Location" then bad things will happen.  

If the Move Is Not “In Good Faith, For Legitimate Purpose, To Reasonable Location” Can The Family Court Tell ME Where I Have To Live? 

No, even if you are moving for bad reasons, the Family Court cannot tell YOU where YOU have to live.  You can move if you want to.  That’s up to you.  

But the Family Court CAN decide where the children are going to live.  And that may not be with you.  

The Family Court CAN decide how to assure that the children’s time with the other parent is not harmed.

The Family Court CAN tell you what you have to do to carry out parenting time under a new order.  

For example, suppose the current Parenting Plan says the other parent gets the kids every other weekend.  You decide to move from West Virginia to Texas, but you don’t have “Good Faith, For Legitimate Purpose, To Reasonable Location."

The Family Court cannot prohibit you from moving to Texas.  But the Family Court CAN order that you have to pay to send the kids back to West Virginia every other weekend.  Or transfer the kids to the other parent.  

Summary: 

If you're planning to move, you must file a Notice of Relocation at least 60 days before the date of the move.  

If you and the other parent cannot agree on how to change the Parenting Plan, you need to ask for a hearing with the judge. 

If your reason for moving is "In Good Faith, and For Legitimate Purpose, and To a Reasonable Location,"  the Family Court will probably approve the move.

Even if the move is approved by the Court, there are likely to be changes in the Parenting Plan.  The Court will want to maintain the same parenting time for each parent, if possible, but it may be arranged in a different way.

If your reason for moving is NOT "In Good Faith, and For Legitimate Purpose, and To a Reasonable Location,"  then bad things will happen.  You could lose parenting time, or be ordered to pay all the costs of transporting the kids for time with the other parent.  The Family Court will do whatever it finds is in the "Best Interests" of the children. 

This is general legal information. For guidance about your situation, talk to a lawyer.