Virginia

Statutory framework; factor structure: 10. Under § 20-124.2(B), a person's legal possession or consumption of substances authorized under Title 4.1 or Chapter 34 of Title 54.1 alone is no basis to restrict custody or visitation, unless other facts establish that the possession or consumption is not in the child's best interest.

Authority

Va. Code Ann. § 20-124.3

Source framework

Statutory

Factor structure

10

Operative language

shall

Catch-all language

yes, (10)

Presumptions in the original survey

Express anti-presumption, § 20-124.2(B)

Child's voice / age rule

none

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Lived "separate and apart without any cohabitation and without interruption for one year," § 20-91(A)(9)(a)

Authority

Va. Code § 20-91 ; § 20-95

Grounds without a misconduct showing

Lived "separate and apart without any cohabitation and without interruption for one year," § 20-91(A)(9)(a)

Other grounds and proof conditions

Adultery before the last separation, sodomy or buggery outside marriage, qualifying felony conviction and confinement, and cruelty, reasonable apprehension of bodily hurt, desertion or abandonment under their statutory timing conditions. Current § 20-91 must be read with the 2026 amendments.

Separation

One year apart, reduced to six months with a separation agreement and no minor children born to both spouses, born to one and adopted by the other, or adopted by both. Bchara v. Bchara, 38 Va. App. 302, 563 S.E.2d 398 (2002), allows a fact-specific finding of separation under one roof. It does not make separate bedrooms alone conclusive.

Timing

None between filing and decree beyond the separation period; § 20-95 says "No waiting period is required" to file for bed and board

Relief without dissolution

Divorce from bed and board under § 20-95 includes a separate-and-apart ground when at least one party intends to remain separate and apart permanently. No waiting period is required to file under § 20-95; a decree is subject to § 20-91. This does not authorize first-day absolute divorce.

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General best-interest factors. On the moving parent. 30 days; exceptions apply.

Authority

Va. Code 20-124.5

Court test

general best-interest factors (no relocation-specific list)

Burden classification

burden on the relocating parent

Notice classification

yes

Trigger classification

any move (no distance threshold)

Effect of silence

not addressed in § 20-124.5

What the court weighs

Best interests of the child control a custodial parent's request to move the children (Cloutier, following Simmons, Bostick and Stockdale, Bostick v. Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319 (1996) read: a court may forbid or permit removal, and the child's best interest decides), guided by the § 20-124.3 factors (including each parent's propensity to support the child's relationship with the other). Wheeler requires a material change in circumstances first, then best interests, with attention to substantially maintaining the child's relationship with the non-custodial parent. A benefit to the parent counts only if the move independently benefits the children. Virginia declined New Jersey's 'unity of interests' approach (Cloutier). No presumption for either parent.

Who carries the burden

The party requesting permission to remove the child bears the burden of proof (Cloutier, citing Bostick and Hughes v. Gentry). Hughes v. Gentry, 18 Va. App. 318, 443 S.E.2d 448 (1994): the parent seeking a transfer of custody bears the burden to show a change in circumstances since the last award. No shift found.

Notice and safety exceptions

Yes, as a term of the order. In any custody or visitation proceeding the court 'shall include as a condition' of the order a requirement that 30 days' advance written notice be given to the court and the other party by any party intending to relocate and of any intended change of address, unless the court for good cause orders otherwise. The court may prescribe the form and contents. § 20-124.5

Which moves trigger the rule

Any intended relocation or change of address. No mileage threshold.

Objections and the effect of silence

None in the statute (no deadline, no deemed consent). The opposing parent files a motion or cross-motion (in Cloutier the father cross-moved). Whether silence permits the move is not addressed by § 20-124.5: unclear.

The modification threshold

Yes, as a threshold when a decree is modified (Wheeler, citing Hughes v. Gentry, § 20-108). In Wheeler the finding rested on the custodial parent's economic decline, so whether a proposed move alone suffices is not shown: unclear.

Other qualifications

The notice is a condition written into each custody order (30 days, to the court and the other party) rather than a self-executing statutory right. No objection window and no presumption.

Burden summary

On the moving parent

Notice summary

30 days; exceptions apply

Trigger summary

Any move

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