Cancellation of Military Transfer Does Not Change Updated Custody Order

Background

             In July of 2016, the parties involved in this case entered a custody and visitation order that awarded joint legal custody between the parties, while also granting primary physical custody to the mother. In October of 2017, after receiving transfer orders from the Air Force to relocate to North Carolina, the mother filed a motion to modify visitation. In response, the father filed a motion to award him primary physical custody, preventing the children from relocating. 

Trial

            Upon hearing the motions, the circuit court decided that the move to North Carolina would not be in the best interests of the children. The court then enjoined the move and awarded the father primary physical custody, with joint legal custody remaining between mother and father.  

Motion to Reconsider

            The mother filed a motion in July of 2018 to reconsider as she was no longer moving to North Carolina. The circuit court declined to reconsider, but instead, modified the mother’s visitation rights. Claiming that the mother did not “make any real effort” in her attempts to stay in Virginia, the court further solidified the fact that upon hearing an adverse ruling, the mother changed her relocation orders in an attempt to regain custody.

Appeal

           On appeal, the court rejected the argument that the mother’s new relocation orders were received after discovered evidence, affirming the court’s decision. The mother then argued on appeal that there was no material change in circumstances that warranted the father being awarded primary physical custody as her Air Force orders were changed before the final custody order. The appeals court rejected this argument as there were other changes besides the mother’s move. 

Smith Strong

Editorial Assistance: Michael Gee