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Ely
Ely, Counselor at Law
Category: Military Law
Satisfied Customers: 102506
Experience:  Licensed attorney in private practice.
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I live in VA and have physical custody of my 1 year old. I

Customer Question

I live in VA and have physical custody of my 1 year old. I am in the military and have orders to move to CA. The father of the child is also in the military, but has been able to retire for 4 years. I have another son, 7 years old from another man who cherishes his brother. The father of my one year old has filed an injunction against my required military move. I applied for 8 different billets in the DC area where I currently am stationed and didn't get any of these. The only one that came up was in CA. If I didn't take that on, the military could then send me over seas, in which I would have certainly lost custody of my 1 year old.
My question is, does he have a chance of getting custody of my 1 year old?
Submitted: 11 months ago.
Category: Military Law
Expert:  Ely replied 11 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Just to clarify - is the other parent asking for CUSTODY of the child? Or, they are simply attempting to BLOCK the relocation?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 11 months ago.
Don't know exactly. He' been vindictive ever since she refused to marry him, refused to abort and the wouldn't give the child his last name.
Expert:  Ely replied 11 months ago.

Thank you. Let us discuss both situations then.

IF HE SIMPLY IS BLOCKING THE MOVE

He has the ability to attempt to block it. If so, then the Court will decide whether relocation can occur. The relocating parent bears burden to prove a material change of circumstances and that the proposed relocation is in the child's best interests. Surles v. Mayer, 48 Va. App. 146, 628 S.E.2d 563 (2006). The Court will look as to reason for relocation, ability to still visit the other parent, school, family, and other circumstances.

IF HE FILES TO MODIFY CUSTODY

He can attempt to do so. However if he does, he has to prove that:

1) There has been a significant change in circumstance to warrant the request for modification, and

2) This is in the best interest of the child per the factors outlined HERE.

The Court is generally hesitant to modify custody unless there is a real need to, such as alcoholism, abuse, neglect, etc. So just because he says he will does not mean that he will be successful if he tries.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 11 months ago.
I tried to stay in VA but was not successful with 8 different billets. This billet was the only one that accepted me n you know if I turned it down n no other billets came up that I could get, the military could send me overseas n then I would loose custody. Isn't that enough to show I don't have a choice?
Expert:  Ely replied 11 months ago.

If someone in your situation gets sent overseas, they do not necessarily lose custody, but they may. It depends on where you'd be sent. If we are talking about a peaceful base where families can live such as in S. Korea, Japan, Germany, etc - then no.

If you'd be sent to an active theater like Iraq or somewhere where no provisions for families are made like Manas in Kyrgyzstan, then the other party may be successful in getting custody.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 11 months ago.
I think u missed my point. The fact that I tried to stay in the area n couldn't, doesn't that play into the consideration that this move wasn't a choice of mine n the child shouldn't be ripped from it's know family life n brother to stay with the father who he barely knows.
Expert:  Ely replied 11 months ago.

Ah, my apologies.

"The fact that I tried to stay in the area n couldn't, doesn't that play into the consideration that this move wasn't a choice of mine"

Not really. Whether or not you are doing this on purpose or without choice, the Court will focus on best interest of the child in the end.

"and the child shouldn't be ripped from it's know family life n brother to stay with the father who he barely knows."

THAT the Court will take into consideration!

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 11 months ago.
Can u give any advise as to what he might try to saw to get the injunction approved? Is there anything that we should be doing to shore up our side ?
Expert:  Ely replied 11 months ago.

If you are sent overseas, where will you be sent?

Customer: replied 11 months ago.
Are u listening? I didn't ask anything about overseas. You're not any help at all