Brandon v. Coffey, Record No. 0440-22-2 (Va. Ct. App. May 16, 2023)
In today’s short opinion, the Court of Appeals considers whether a trial court must separately consider whether living out-of-state is in the best interest of the child when the prospective custodial parent already lives out of state.
Facts. Sidney Brandon and Laurie Coffey have a twelve-year-old daughter. The parties were never married and had no formal custody arrangement, but the child had lived with Coffey until she was ten by the parties’ agreement. Coffey was a Navy officer and lived in several states with the child, including overseas. Brandon lived in Dudas, Virginia. In 2019, Coffey retired and accepted a job in England. While awaiting a visa, the child temporarily lived with Brandon. But when the time came for the child to move to England, Brandon changed his mind, wanting the child to permanently live with him in Virginia.
In June 2020, both parties petitioned for custody of the child. The same month, Coffey resigned from her job and moved to New York. The circuit court awarded primary custody to Coffey. Brandon appealed, arguing that the court erred in not making a specific finding that relocating the child from Virginia to New York was in her best interest.
Issue. Whether an initial custody determination involving removing a child from the Commonwealth must include an express, written finding that such removal is in the child’s best interest.
Holding. Virginia law does not require a relocation analysis in initial custody matters.
Notes. The best interest of the child is the primary consideration in child custody cases. Code § 20-124.3 lists ten factors that the court must consider in determining the child’s best interest. So long as the court considers each factor and articulates the predominating reasons for its decision, it has met its obligation to consider the child’s best interest. Here, the court properly articulated the rationale for its decision.
Importantly, this holding may not apply to subsequent custody determinations after a parent has relocated. As the court noted, a final custody order can be modified if the moving parent can show (a) a change of circumstances and (b) proof that the child’s best interest will be served by the modification. The second element of that analysis might require a court to examine whether relocation is in the child’s best interest when a parent’s relocation is the change of circumstance that brings about a petition for modification. That was not the case here, however, because Coffey never relocated: she had already moved to New York and had never lived in Dundas at the time of the initial custody determination.