Virginia’s Court of Appeals upholds a decision letting a Navy sailor move her children from Norfolk to her new posting in San Diego; she had looked for postings in both areas as her current assignment neared its end. Stated and implied reasons:
- Mother’s family connections on the West Coast, including her mother who would help care for the children and an aunt in Arizona who could be available in an emergency.
- Father’s mental health condition made him unable to care for the children for extended periods.
- Inconsistently with that, but importantly, the trial court had protected the father-child relationship as much as possible by ordering the most equal sharing possible of the children’s time, giving father all summer with them in Virginia and liberal visits in California.
- The trial court did not give the mother any preference under the Virginia Military Parents Equal Protection Act, such as a different burden of proof. It took the facts, including those related to her military service, into account when seeking a determination that would be in the best interests of the child.
- The father did not have any job that would keep him from moving to California too, nor which contributed to the children’s welfare. He did maintenance work in exchange for living rent-free.
- In the past, the father had moved with the mother’s Navy moves. (That is largely a good point, but it is a fundamentally different decision to move as part of an intact couple, which makes decisions together and cares for each member’s sustainable welfare, versus pulling up stakes and moving based on the movements of an autonomous “legal stranger” who could go elsewhere at any time and may not share information about intentions, possibilities, etc. I recently had a case where a soldier was reassigned to Malaysia, and while litigating against relocation the mother also made serious efforts to get a job there, but then before he moved, the assignment changed to Hawaii, and then to Germany before he actually moved away.)
- The mother’s regular income, health benefits, etc. Those of course are not a legitimate reasons for giving one parent custody over another, and it’s hard to imagine a father getting away with it. But in this case, the mother said that if she could not move to San Diego she would leave the Navy. (The opinion does not say if she would be forced to leave the Navy, or choose to. Nor does it discuss civilian jobs the mother could get in Virginia, nor whether she had served long enough to retire with health benefits.)
Not all these factors would normally be very persuasive, nor weigh completely in favor of the mother, but they were all viewed differently in the light of the father’s obvious personal problems and inability to function as a custodial parent.
Wheeler v. Wheeler (unpublished, 5/19/15) VLW 6-1-15 p 16