Part 4. Modification Of Parenting Plan.
§48-9-403. Relocation of a parent.
(a) The relocation of a parent constitutes a substantial change in the circumstances of the child under §48-9-401(a) of this code when it impairs either parent’s ability to exercise responsibilities that the parent has been exercising, or when it impairs the schedule of custodial allocation that has been ordered by the court for a parent or any other person.
(b) A parent who has responsibility under a parenting plan who changes, or intends to change, residences must file a verified petition with the court for modification of the parenting plan, and cause a copy of the same to be served upon the other parent and upon all other persons who, pursuant to the court’s order in effect at the time of the petition, have been allocated custodial time with the child. The petition shall be filed at least 90 days prior to any relocation, and the summons must be served at least 60 days in advance of any relocation, unless the relocating parent establishes that it was impracticable under the circumstances to provide such notice 90 days in advance. The verified petition shall include:
(1) The proposed relocation date;
(2) The address of the intended new residence;
(3) The specific reasons for the proposed relocation;
(4) A proposal for how custodial responsibility shall be modified, in light of the intended move; and
(5) A request for a hearing.
Failure to comply with the requirements of this section may be a factor in the determination of whether the relocation is in good faith under subsection (d) of this section, and may also be a basis for reallocation of the primary residence and custodial responsibility for the child and for an award of reasonable expenses and reasonable attorney’s fees to another parent or another person exercising custodial responsibility for the child pursuant to an order of the court that are attributable to such failure.
(c) A hearing on the petition shall be held by the court at least 30 days in advance of the proposed date of relocation. A parent proposing to relocate may move for an expedited hearing upon the petition in circumstances under which the parent needs an answer expeditiously. If the hearing is held fewer than 30 days in advance of the proposed date of relocation, the court’s order shall include findings of fact as to why the hearing was not held at least 30 days prior to the petition’s proposed date of relocation. After a hearing upon a petition filed under this section, the court shall, if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercised by each of the parents and all such other persons exercising custodial responsibility for the child pursuant to the order of the court. In making such revision, the court may consider the additional costs that a relocation imposes upon the respective parties for transportation and communication, and may equitably allocate such costs between the parties and may consider §48-13-702 of this code authorizing the court to disregard the child support formula relating to long distance visitation costs.
(d) (1) At the hearing held pursuant to this section, the relocating parent has the burden of proving that: (A) The reasons for the proposed relocation are legitimate and made in good faith; (B) that allowing relocation of the relocating parent with the child is in the best interests of the child as defined in §48-9-102 of this code; and (C) that there is no reasonable alternative, other than the proposed relocation, available to the relocating parent that would be in the child’s best interests and less disruptive to the child.
(2) A relocation is for a legitimate purpose if it is to be close to immediate family members, for substantial 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 one’s spouse or significant other with whom the relocating parent has cohabitated for at least a year, who is established, or who is pursuing a significant employment or educational opportunity, in another location.
(3) The relocating parent has the burden of proving the proposed relocation is for one of these legitimate purposes. The relocating parent has the burden of proving the legitimacy of any other purpose. A move with a legitimate purpose is unreasonable unless the relocating parent proves that the purpose is not substantially achievable without moving, and that moving to a location that is substantially less disruptive of the other parent’s relationship to the child is not feasible.
(4) When the relocation is for a legitimate purpose, in good faith, and renders it impractical to maintain the same proportion of custodial responsibility as that being exercised by each parent and all other persons exercising custodial responsibility for the child pursuant to an order of the court, the court shall modify the parenting plan in accordance with the child’s best interests.
(5) If the relocating parent does not establish that the purpose for that parent’s relocation is made in good faith for a legitimate purpose to a location that is reasonable in light of the purpose, the court may modify the parenting plan in accordance with the child’s best interests and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial responsibility, to become effective if and when the parent’s relocation occurs.
(6) The court shall attempt to minimize impairment to a parent-child relationship caused by a parent’s relocation through alternative arrangements for the exercise of custodial responsibility appropriate to the parents’ resources and circumstances and the developmental level of the child.
(e) If the parties file with the court a modified parenting plan signed by all the parties the court may enter an order modifying custodial responsibility in accordance with the parenting plan if the court determines that the parenting plan is in the best interest of the child to do so.
(f) Except in extraordinary circumstance articulated in the court’s order, a relocation may not be considered until an initial permanent parenting plan is established.
(g) In determining the effect of the relocation or proposed relocation on a child, any interviewing or questioning of the child shall be conducted in accordance with the provisions of Rule 17 of the Rules of Practice and Procedure for Family Court as promulgated by the Supreme Court of Appeals.
Notes of Decisions
Cited in
40
cases (
20 in the last 5 years), 2006–2026 · leading case:
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
· cites it 25× “Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
Todd M.S. v. Julie M.G., 741 S.E.2d 837 (W. Va. 2013).
· cites it 26× “However, you moved without complying with the statute [W.Va.Code § 48-9-403] and you did so knowing your move would make your visitation more difficult.”
In re Visitation & Custody of Senturi N.S.V., 652 S.E.2d 490 (W. Va. 2007).
· cites it 8× “Insofar as Misty’s move to Texas would have constituted a substantial change in circumstances because it would have hindered Joshua’s ability to maintain his visitation with Senturi, W. Va.Code § 48-9-403(a), the family court was required to “modify the parenting plan in…”
Skidmore v. Rogers, 725 S.E.2d 182 (W. Va. 2011).
· cites it 2× “The family court declined to hear from Joshua directly and instead appointed a guardian ad litem for Joshua, pursuant to West Virginia Code § 48-9-403. The guardian ad litem conducted interviews with Joshua and both of his parents.”
Alyssha R. v. Nicholas H., 760 S.E.2d 560 (W. Va. 2014).
· cites it 4× “cation of a parent supplies: (b) Unless otherwise ordered by the court, a parent who has responsibility under a parenting plan who changes, or intends to change, residences for more than ninety days must give a minimum of sixty days’ advance notice, or the most notice…”
Amanda A. v. Kevin T., 751 S.E.2d 757 (W. Va. 2013).
· cites it 2× “The methodology for determining when a parenting plan can be modified, as applicable to the circumstances of this case, is provided in West Virginia Code § 48-9-401(a) (2001): Except as provided in section 9-402 [§ 48-9-402] or 9-403 [§ 48-9-403], a court shall modify a…”
Nicole L. v. Steven W., 241 W. Va. 466 (2019).
· cites it 33× “Because seventy percent (70%) is the number that constitutes a significant majority under W. Va. Code § 48-9-403 (d)(1) (LexisNexis 2015), Mother was deemed to be exercising a significant majority of custodial responsibility for B.”
Robinson v. Robinson, 211 S.W.3d 63 (Ky. Ct. App. 2006).
“(2006)), West Virginia (W.Va.Code § 48-9-403 (2006)) and Wisconsin ( Wis.”
In re J.p., E.p., & S.P., 810 S.E.2d 268 (W. Va. 2018).
· cites it 4× “If either [the mother or the father] decide to relocate from Chester, West Virginia, they must comply with the provisions of West Virginia Code Section 48-9-403, relating to "Relocation of a parent.”
Stacey J. v. Henry A., 842 S.E.2d 703 (W. Va. 2020).
· cites it 15× “2d 70, 78 (2010), our seminal case on parent relocation, we observed that “when the factors set forth in subsection (1) [of W. Va. Code § 48-9-403 (d)] are met, the Court should allow the parent who has been exercising the significant majority of custodial responsibility to…”
In re The Child of Steven C. & Melissa D., No. 18-0289 (W. Va. Sept. 13, 2019).
· cites it 12× “See W. Va. Code § 48-9-403 (d)(1) (setting forth circumstances that constitute a legitimate purpose, which include joining a “spouse .”
C.L. v. S.L., No. 12-0677 (W. Va. Feb. 5, 2014).
· cites it 18× “The circuit court concluded that the family court had abused its discretion in failing to apply the principles of W. Va. Code § 48-9-403 (d) (2001) (Repl. Vol.”
W. Va. Code § 48-9-403(a): 4 cases
In re Visitation & Custody of Senturi N.S.V., 652 S.E.2d 490 (W. Va. 2007).
“Insofar as Misty’s move to Texas would have constituted a substantial change in circumstances because it would have hindered Joshua’s ability to maintain his visitation with Senturi, W. Va.Code § 48-9-403(a), the family court was required to “modify the parenting plan in…”
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
“Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
Todd M.S. v. Julie M.G., 741 S.E.2d 837 (W. Va. 2013).
“However, you moved without complying with the statute [W.Va.Code § 48-9-403] and you did so knowing your move would make your visitation more difficult.”
W. Va. Code § 48-9-403(b): 8 cases
Alyssha R. v. Nicholas H., 760 S.E.2d 560 (W. Va. 2014).
“cation of a parent supplies: (b) Unless otherwise ordered by the court, a parent who has responsibility under a parenting plan who changes, or intends to change, residences for more than ninety days must give a minimum of sixty days’ advance notice, or the most notice…”
In re Visitation & Custody of Senturi N.S.V., 652 S.E.2d 490 (W. Va. 2007).
“Insofar as Misty’s move to Texas would have constituted a substantial change in circumstances because it would have hindered Joshua’s ability to maintain his visitation with Senturi, W. Va.Code § 48-9-403(a), the family court was required to “modify the parenting plan in…”
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
“Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
Todd M.S. v. Julie M.G., 741 S.E.2d 837 (W. Va. 2013).
“However, you moved without complying with the statute [W.Va.Code § 48-9-403] and you did so knowing your move would make your visitation more difficult.”
In re The Child of Steven C. & Melissa D., No. 18-0289 (W. Va. Sept. 13, 2019).
“See W. Va. Code § 48-9-403 (d)(1) (setting forth circumstances that constitute a legitimate purpose, which include joining a “spouse .”
W. Va. Code § 48-9-403(b)(5): 1 case
W. Va. Code § 48-9-403(c): 5 cases
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
“Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
Todd M.S. v. Julie M.G., 741 S.E.2d 837 (W. Va. 2013).
“However, you moved without complying with the statute [W.Va.Code § 48-9-403] and you did so knowing your move would make your visitation more difficult.”
Nicole L. v. Steven W., 241 W. Va. 466 (2019).
“Because seventy percent (70%) is the number that constitutes a significant majority under W. Va. Code § 48-9-403 (d)(1) (LexisNexis 2015), Mother was deemed to be exercising a significant majority of custodial responsibility for B.”
Stacey J. v. Henry A., 842 S.E.2d 703 (W. Va. 2020).
“2d 70, 78 (2010), our seminal case on parent relocation, we observed that “when the factors set forth in subsection (1) [of W. Va. Code § 48-9-403 (d)] are met, the Court should allow the parent who has been exercising the significant majority of custodial responsibility to…”
W. Va. Code § 48-9-403(d): 6 cases
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
“Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
Stacey J. v. Henry A., 842 S.E.2d 703 (W. Va. 2020).
“2d 70, 78 (2010), our seminal case on parent relocation, we observed that “when the factors set forth in subsection (1) [of W. Va. Code § 48-9-403 (d)] are met, the Court should allow the parent who has been exercising the significant majority of custodial responsibility to…”
Nicole L. v. Steven W., 241 W. Va. 466 (2019).
“Because seventy percent (70%) is the number that constitutes a significant majority under W. Va. Code § 48-9-403 (d)(1) (LexisNexis 2015), Mother was deemed to be exercising a significant majority of custodial responsibility for B.”
In re The Child of Steven C. & Melissa D., No. 18-0289 (W. Va. Sept. 13, 2019).
“See W. Va. Code § 48-9-403 (d)(1) (setting forth circumstances that constitute a legitimate purpose, which include joining a “spouse .”
W. Va. Code § 48-9-403(d)(1): 13 cases
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
“Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
In re Visitation & Custody of Senturi N.S.V., 652 S.E.2d 490 (W. Va. 2007).
“Insofar as Misty’s move to Texas would have constituted a substantial change in circumstances because it would have hindered Joshua’s ability to maintain his visitation with Senturi, W. Va.Code § 48-9-403(a), the family court was required to “modify the parenting plan in…”
Todd M.S. v. Julie M.G., 741 S.E.2d 837 (W. Va. 2013).
“However, you moved without complying with the statute [W.Va.Code § 48-9-403] and you did so knowing your move would make your visitation more difficult.”
Nicole L. v. Steven W., 241 W. Va. 466 (2019).
“Because seventy percent (70%) is the number that constitutes a significant majority under W. Va. Code § 48-9-403 (d)(1) (LexisNexis 2015), Mother was deemed to be exercising a significant majority of custodial responsibility for B.”
W. Va. Code § 48-9-403(d)(1)(C): 2 cases
W. Va. Code § 48-9-403(d)(2): 3 cases
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
“Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
Nicole L. v. Steven W., 241 W. Va. 466 (2019).
“Because seventy percent (70%) is the number that constitutes a significant majority under W. Va. Code § 48-9-403 (d)(1) (LexisNexis 2015), Mother was deemed to be exercising a significant majority of custodial responsibility for B.”
W. Va. Code § 48-9-403(d)(3): 4 cases
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
“Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
In re The Child of Steven C. & Melissa D., No. 18-0289 (W. Va. Sept. 13, 2019).
“See W. Va. Code § 48-9-403 (d)(1) (setting forth circumstances that constitute a legitimate purpose, which include joining a “spouse .”
Nicole L. v. Steven W., 241 W. Va. 466 (2019).
“Because seventy percent (70%) is the number that constitutes a significant majority under W. Va. Code § 48-9-403 (d)(1) (LexisNexis 2015), Mother was deemed to be exercising a significant majority of custodial responsibility for B.”
W. Va. Code § 48-9-403(d)(4): 2 cases
In re Visitation & Custody of Senturi N.S.V., 652 S.E.2d 490 (W. Va. 2007).
“Insofar as Misty’s move to Texas would have constituted a substantial change in circumstances because it would have hindered Joshua’s ability to maintain his visitation with Senturi, W. Va.Code § 48-9-403(a), the family court was required to “modify the parenting plan in…”
W. Va. Code § 48-9-403(d)(6): 1 case
W. Va. Code § 48-9-403(d)(l): 2 cases
Storrie v. Simmons, 693 S.E.2d 70 (W. Va. 2010).
“Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both…”
Todd M.S. v. Julie M.G., 741 S.E.2d 837 (W. Va. 2013).
“However, you moved without complying with the statute [W.Va.Code § 48-9-403] and you did so knowing your move would make your visitation more difficult.”
W. Va. Code § 48-9-403(e): 1 case
Todd M.S. v. Julie M.G., 741 S.E.2d 837 (W. Va. 2013).
“However, you moved without complying with the statute [W.Va.Code § 48-9-403] and you did so knowing your move would make your visitation more difficult.”
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