D.C. Court of Appeals Issues New Custody Factors for Cases Involving Relocation

At the end of June 2013, the D.C. Court of Appeals issued its opinion in Estopina v. O’Brian, affirming the trial court’s decision to grant appellant’s ex-wife joint legal and primary physical custody of the parties’ then four-year-old child, and allow the mother to move with the child from the District of Columbia to Virginia Beach, Virginia.

The facts as set forth in the Court’s opinion are fairly straightforward.  The parties were married in 2005 and the child was born in 2006.  The parties were separated in 2009 and the appellant-father filed his Complaint for Custody in April 2010.  The mother filed a Complaint for Legal Separation in June 2010 and a Motion for Temporary Custody on July 29, 2010, seeking permission to relocate from the District of Columbia to Virginia Beach, Virginia with the child.  Following trial on these consolidated cases, the trial court granted joint legal and primary physical custody to the mother and allowed her to move with the child from the District of Columbia to Virginia Beach.  The trial court awarded the father regular visitation consisting of alternating weekends, as well as an alternating holiday schedule including a regular summer vacation schedule that granted appellant five weeks with the child in the summer.

In reaching this custody arrangement, the Court of Appeals found that the trial court placed special emphasis on the strong relationship the child had with his family in Virginia Beach.  The trial court also gave significant weight to the fact that the mother had been offered a teaching position at a school in Virginia Beach where the minor child would attend.  The trial court also gave weight to the fact that the appellant traveled frequently for his job and had been able to maintain a strong relationship with his son despite the separation.

On appeal, the appellant argued that the trial court abused its discretion in awarding primary physical custody to the mother and allowing her to relocate to Virginia Beach.  In considering appellant’s claim, the Court of Appeals found that the trial court weighed all of the appropriate factors, and no inappropriate factors, in determining what custody arrangement would be in the best interests of the child pursuant to D.C. Code § 16-914(a)(3)(A-Q), the child custody statute.  However, the Court of Appeals noted that “because a parent’s proposed geographic relocation may uproot the child from important relationships within the child’s former community and present logistical challenges to the ability of the child and the non-custodial parent to maintain a close relationship, additional factors must be considered when a petition for custody includes a request to relocate with the child.”  Accordingly, the Court of Appeals held that the following factors are relevant and appropriate factors for a trial court to consider in any relocation request:

>The strength of the relationship of the child with each parent;

>The individual resources, temperament and special development needs of the child;

>The psychological stability of the relocating parent and the parenting effectiveness of both parents;

>The success of the current custody arrangement and the effect the proposed relocation will have on its stability and continuity;

>The advantages and disadvantages of the proposed relocation, including the potential disruption of the child’s social and school life and a comparison of the educational, health and extracurricular opportunities the child would have in each location;

>Any benefits to the child likely to be derived from the parents’ improved circumstances;

>The feasibility of an alternative visitation and access schedule, including the geographic proximity of and travel time between the parental homes as this relates to the practical considerations of the child’s residential schedule;

>The motivations of the parents in proposing and opposing relocation;

>The effect the move will have on the child’s relationship with the non-custodial parent; and

>The extent of any conflict between the parents and the recentness of the marital separation.

In that case, the Court of Appeals found that the trial court considered many of these additional factors before reaching a custody decision.  Although the Court of Appeals noted that it might have weighed the relevant factors differently, they found that the trial court carefully balanced the various relevant factors and therefore did not abuse its discretion.

In light of the Court’s decision in Estopina, it is important for any parent considering a relocation to an area that is not within the near geographic proximity of the other parent (typically, any area over an hour away) to consider these factors when contemplating such a move.  Although the factors should not stand as a barrier to a proposed relocation, they do require a brief pause to consider how they may affect the outcome of any custody litigation between the parties if an agreement regarding custody and relocation is not reached outside of court.