It depends.

If the move would “significantly impair” the other parent’s rights (or the rights of any other person who has been ordered to have visitation), you’ll have to modify your Parenting Plan.  For example, a move within the same general community that allows the other parent to maintain the existing plan means you probably don’t have to change your Parenting Plan.  A long distance move that means it won’t be practical for the other parent to follow the existing plan does require a modification to the Parenting Plan.

In that case, no modification would likely be necessary. If the other parent or person does not have any rights or responsibilities, then that parent’s or person’s rights or responsibilities can’t be “significantly impaired” by the move. However, you should review your custody order and Parenting Plan carefully as you may be required to provide the other parent or person with your new address anyway.

If the move “significantly impairs” the other parent’s or any other person’s rights or responsibilities and court ordered visitation—even if only temporarily—you will need to file for relocation.

If you and the other parent can agree on a modified Parenting Plan based on your relocation, you may file it jointly with the Court. If you and your child’s other parent can’t agree on a new Parenting Plan, follow the steps outlined below.  

NOTE: It is not recommended that you attempt to create an agreed Parenting Plan if your relationship with the other parent involved any domestic violence.

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. File a Petition of Relocation and Civil Case Information Statement with the court and serve the petition to (a) the other parent or (b) anyone else who the court has awarded visitation time at least 90 days ahead of your planned relocation. There are Instructions for the Petition available through the West Virginia Supreme Court of Appeals website.
2. You must serve a summons on the other parent or person at least 60 days before the relocation occurs. This can be arranged through your county’s circuit clerk office.
3. Try coming to an agreed new Parenting Plan with the other parent or person.
4. If the parties agree and file a new joint Parenting Plan with the court, the court may order that the agreed-upon Parenting Plan be adopted as long as it’s in the best interest of the child.
5. If you cannot agree on a new Parenting Plan with the other parent or person, you must return to family court where the judge will decide how the Parenting Plan should be revised.
6. 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’s not possible to maintain the same proportion of time for each parent, the judge will make whatever changes they feel are in the best interests of the child.

The family court will also rule on logistics of the move such as how to divide the costs of transportation and communication between the parents.

You’ll need to (a) send a copy of the Petition of Relocation to the other parent or persons who have been given parenting time by a court and (b) file the original verified copy with the Circuit Clerk’s Office. If you have any questions about serving the other party, ask the Circuit Clerk about the best option in your case.

There is an $85 filing fee which must be paid when you file your Petition of Relocation with the Circuit Clerk. If you are unable to pay the $85 filing fee, you may file a Fee Waiver form along with your petition. If the Fee Waiver is approved, you won’t be charged the filing fee.

At least 60 days before relocation, a summons must be served on the other parent or person who has been awarded parenting time with the child.

Even if you and the other parent or person have reached an agreement, you’ll still need to file the Petition of Relocation with the family court.

The best policy is to be honest. If you are planning to relocate, give as much advance notice as possible. If you are unable to give the required 90-day notice, you may explain why in your petition and that you are giving as much advance notice as is possible under the circumstances.

Within five days of getting the request for hearing, the family court should mail an order setting the date for a hearing on your potential relocation. The hearing will be held at least 30 days before the proposed move date.

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.

 The family court will analyze whether the reasons for the requesting relocation are “legitimate” and are being made in “good faith.” If the judge believes the relocation is simply an attempt to cut off the other parent or person’s access to the child, it’s very unlikely that relocation will be granted.

 The family court judge will base their decision on the following considerations:

1. The reason for the proposed move is “legitimate” and made in “good faith.”
2. Allowing the parent to move with the child is in the child’s best interest.
3. There is no reasonable or comparable alternative to relocating.

 “Good faith” means that your reasons for relocating align with those of an ordinary, reasonable person. Such reasons would eliminate suspicion that the relocation is actually retaliation or punishment to the other parent or person. If your reasons wouldn’t be enough for ordinary, reasonable people to disrupt their lives by relocating, the family court may not grant it.

West Virginia law gives a pretty good list of things that normally would be considered as a “legitimate purpose”

They include:

1. To be closer to immediate family members such as parents, grandparents, etc.;
2. For substantial health reasons;
3. To protect the safety of the child or another member of the child’s household from significant risk of harm;
4. To pursue a significant employment or educational opportunity; or
5. To be with a spouse or significant other with whom the relocating parent has cohabitated for at least a year, who is already established in another location, or who is pursuing a “significant employment or educational opportunity” in another location.

This list is not necessarily exhaustive, but it gives an idea of the reasons that the family court will expect to see in a Petition of Relocation. The moving parent must prove the legitimacy of any reason for their relocation.

Even if the family court finds your reason for relocation to be a legitimate purpose, the judge must also consider (a) whether the moving parent could achieve the same legitimate purpose without relocating and (b) whether achieving that legitimate purpose can be done in a location which wouldn’t disrupt the Parenting Plan.

Let’s start with an example. Suppose you’ve decided to enroll in a Certified Nursing Assistant (“CNA”) program. Let’s assume you’re a West Virginia resident, but have your sights set on a program in California.

Because CNA programs can be found pretty much anywhere in the country and there’s guaranteed to be one closer than California, the family court would probably rule that moving to California is not a reasonable choice.  In this hypothetical, the moving parent could accomplish the same purpose, without disrupting the Parenting Plan, by choosing a local CNA training program.

Here’s another example: let’s say you’ve decided to look for a better job, but you don’t have one lined up yet. You want to move from West Virginia to Florida to start looking for a similar job that you already have.

Like the last example, this is also unlikely to be considered reasonable. There’s nothing wrong with having career aspirations or wanting to better your financial situation, but the kind of job you’re seeking could probably be found closer to your current location than Florida. The family court would likely decide that the location you’ve chosen is not reasonably necessary to accomplish the described purpose.

The obligation of the family court is to be as fair as possible to both parties and to assure that the children have meaningful time with both parents.

The court has a few options:

1. The judge could make any changes to the plan in the best interest of the child.
2. The judge could transfer primary custody over to the parent who is not relocating.
3. The judge could order that the moving parent stick to the same Parenting Plan even after the move—no matter the cost or difficulty of doing so.
4. The court could order that the moving parent pay the entire cost of transporting the children back to the original community for visitation with the other parent.

The court can also choose a completely different option; each case is different. Ultimately, the court will order what is in the best interests of the child.

The family court can’t tell you where you must live. You are free to move if you want to. However, the family court can decide where the child is going to live—and that may not be with you.

 If you’re planning to move, you must file a Petition of Relocation at least 90 days before the moving date.

If your reason for moving is (a) in good faith, (b) for a legitimate purpose, and (c) to a reasonable location, the family court may approve the relocation.

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

If your reason for moving is not (a) in good faith, (b) for a legitimate purpose, and (c) to a reasonable location, then you may face undesirable results, such as loss of parenting time or costs of transportation for the child’s visitation with the other parent.

Ultimately, the family court will order what is in the child’s best interest.