Shared by Joey Cutchins of West Virginia Case Search on April 28, 2026
Research Question
What factors does a WV family court consider when one parent proposes to relocate out of state with a child?
Legal Memorandum
Precedent: StrongWest Virginia family courts apply a comprehensive statutory framework under W. Va. Code § 48-9-403 when considering parental relocation requests with children. The analysis differs based on the custodial arrangement and requires specific procedural compliance and substantive showings.
PROCEDURAL REQUIREMENTS
A relocating parent must file a verified petition with the family court at least 90 days prior to any relocation and serve the other parent at least 60 days in advance, unless circumstances make earlier notice impracticable. W. Va. Code § 48-9-403(b). The petition must 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." W. Va. Code § 48-9-403(b). Failure to comply with these notice requirements may be considered evidence of bad faith and can result in reallocation of custody and attorney fee awards. W. Va. Code § 48-9-403(b).
BURDEN OF PROOF AND SUBSTANTIVE STANDARDS
Under the current statutory framework, as clarified by the Intermediate Court of Appeals in Katherine A. v. Jerry A., No. 22-ICA-52 (W. Va. Ct. App. 2023), the 2021 revision to W. Va. Code § 48-9-403 eliminated previous presumptions and burden-shifting tests. The relocating parent now bears the burden of proving three elements: "(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." W. Va. Code § 48-9-403(d)(1).
LEGITIMATE PURPOSE REQUIREMENT
The statute defines legitimate purposes as relocations "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." W. Va. Code § 48-9-403(d)(2). The Supreme Court has recognized employment opportunities, health reasons requiring family support, and proximity to family support networks as legitimate purposes. In Robert C., Jr. v. Kimberly C., No. 13-0534 (W. Va. 2014), the Court affirmed a relocation to Texas based on the mother's health issues requiring family support and employment opportunities.
GOOD FAITH ANALYSIS
Courts examine whether the relocation is made in good faith rather than to interfere with the other parent's relationship with the child. In In re The Child of Steven C. and Melissa D., No. 18-0289 (W. Va. 2019), the Supreme Court held that a family court clearly erred in finding bad faith simply because a parent accepted employment shortly after job loss when no other opportunities were available locally. The Court emphasized that timing alone does not establish bad faith when legitimate circumstances necessitate the move.
BEST INTERESTS ANALYSIS
The relocating parent must prove that relocation serves the child's best interests under the factors enumerated in W. Va. Code § 48-9-102. In Stacey J. v. Henry A., No. 18-0987 (W. Va. 2020), the Supreme Court emphasized that "[t]he family court must conduct a thorough analysis of all relevant factors when determining a child's best interests in custody modification cases following parental relocation." Courts cannot rely on a single factor analysis but must consider all statutory best interest factors.
REASONABLE ALTERNATIVE ANALYSIS
The relocating parent must demonstrate that no reasonable alternative exists that would be less disruptive to the child and the other parent's relationship. In Julie M. v. Michael M., No. 20-0993 (W. Va. 2022), the Supreme Court affirmed a family court's finding that relocation to Florida was unreasonable because similar employment opportunities were available closer to the children's established lives.
CUSTODIAL RESPONSIBILITY CONSIDERATIONS
While the 2021 amendments eliminated the previous presumption favoring parents with significant majority custody, courts still consider custodial responsibility patterns. In Nicole L. v. Steven W., No. 18-0025 (W. Va. 2019), the Supreme Court held that "custodial responsibility includes duties innate to parenthood such as caretaking functions defined in W. Va. Code § 48-1-210" and cannot be determined solely by overnight visit schedules.
REMEDIES FOR NON-COMPLIANCE
When relocation occurs without proper notice or court approval, family courts may reallocate custody and award attorney fees. The Intermediate Court of Appeals in ROBERT F. v. KORRIE H., No. 23-ICA-278 (W. Va. Ct. App. 2024), held that family courts must apply relocation statute principles even when relocation occurs before formal custody proceedings are initiated, particularly when a parent secretly relocates without providing notice.
In summary, West Virginia family courts apply a comprehensive three-part test requiring proof of legitimate purpose, good faith, best interests of the child, and absence of reasonable alternatives, while ensuring compliance with strict procedural notice requirements.
Precedent Strength: Strong — multiple consistent WV Supreme Court opinions and directly applicable statutory text on point.
PROCEDURAL REQUIREMENTS
A relocating parent must file a verified petition with the family court at least 90 days prior to any relocation and serve the other parent at least 60 days in advance, unless circumstances make earlier notice impracticable. W. Va. Code § 48-9-403(b). The petition must 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." W. Va. Code § 48-9-403(b). Failure to comply with these notice requirements may be considered evidence of bad faith and can result in reallocation of custody and attorney fee awards. W. Va. Code § 48-9-403(b).
BURDEN OF PROOF AND SUBSTANTIVE STANDARDS
Under the current statutory framework, as clarified by the Intermediate Court of Appeals in Katherine A. v. Jerry A., No. 22-ICA-52 (W. Va. Ct. App. 2023), the 2021 revision to W. Va. Code § 48-9-403 eliminated previous presumptions and burden-shifting tests. The relocating parent now bears the burden of proving three elements: "(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." W. Va. Code § 48-9-403(d)(1).
LEGITIMATE PURPOSE REQUIREMENT
The statute defines legitimate purposes as relocations "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." W. Va. Code § 48-9-403(d)(2). The Supreme Court has recognized employment opportunities, health reasons requiring family support, and proximity to family support networks as legitimate purposes. In Robert C., Jr. v. Kimberly C., No. 13-0534 (W. Va. 2014), the Court affirmed a relocation to Texas based on the mother's health issues requiring family support and employment opportunities.
GOOD FAITH ANALYSIS
Courts examine whether the relocation is made in good faith rather than to interfere with the other parent's relationship with the child. In In re The Child of Steven C. and Melissa D., No. 18-0289 (W. Va. 2019), the Supreme Court held that a family court clearly erred in finding bad faith simply because a parent accepted employment shortly after job loss when no other opportunities were available locally. The Court emphasized that timing alone does not establish bad faith when legitimate circumstances necessitate the move.
BEST INTERESTS ANALYSIS
The relocating parent must prove that relocation serves the child's best interests under the factors enumerated in W. Va. Code § 48-9-102. In Stacey J. v. Henry A., No. 18-0987 (W. Va. 2020), the Supreme Court emphasized that "[t]he family court must conduct a thorough analysis of all relevant factors when determining a child's best interests in custody modification cases following parental relocation." Courts cannot rely on a single factor analysis but must consider all statutory best interest factors.
REASONABLE ALTERNATIVE ANALYSIS
The relocating parent must demonstrate that no reasonable alternative exists that would be less disruptive to the child and the other parent's relationship. In Julie M. v. Michael M., No. 20-0993 (W. Va. 2022), the Supreme Court affirmed a family court's finding that relocation to Florida was unreasonable because similar employment opportunities were available closer to the children's established lives.
CUSTODIAL RESPONSIBILITY CONSIDERATIONS
While the 2021 amendments eliminated the previous presumption favoring parents with significant majority custody, courts still consider custodial responsibility patterns. In Nicole L. v. Steven W., No. 18-0025 (W. Va. 2019), the Supreme Court held that "custodial responsibility includes duties innate to parenthood such as caretaking functions defined in W. Va. Code § 48-1-210" and cannot be determined solely by overnight visit schedules.
REMEDIES FOR NON-COMPLIANCE
When relocation occurs without proper notice or court approval, family courts may reallocate custody and award attorney fees. The Intermediate Court of Appeals in ROBERT F. v. KORRIE H., No. 23-ICA-278 (W. Va. Ct. App. 2024), held that family courts must apply relocation statute principles even when relocation occurs before formal custody proceedings are initiated, particularly when a parent secretly relocates without providing notice.
In summary, West Virginia family courts apply a comprehensive three-part test requiring proof of legitimate purpose, good faith, best interests of the child, and absence of reasonable alternatives, while ensuring compliance with strict procedural notice requirements.
Precedent Strength: Strong — multiple consistent WV Supreme Court opinions and directly applicable statutory text on point.
Reasoning: This analysis is based on strong binding precedent from multiple West Virginia Supreme Court of Appeals decisions spanning from 2010 to 2022, supported by the comprehensive statutory framework in W. Va. Code § 48-9-403. The Supreme Court opinions provide consistent guidance on the key factors courts consider, including legitimate purpose requirements, good faith analysis, best interests determinations, and procedural compliance. The 2021 statutory amendments are well-documented through both the statute text and the Intermediate Court of Appeals decision in Katherine A. v. Jerry A., which provides persuasive authority on the current burden-shifting framework. The combination of binding precedent and directly applicable statutory text provides a strong foundation for this analysis, though I have appropriately noted where ICA opinions provide only persuasive rather than binding authority.
Cited Opinions (15)
In re The Child of Steven C. and Melissa D.
No. 18-0289 · Filed Sep 13, 2019
SCA
Majority
Affirmed
A parent exercising significant majority custodial responsibility may relocate with a child when the relocation is in good faith for a legitimate purpose, and the location is reasonable in light of that purpose. A family court clearly errs when it denies relocation based on the timing of an oral job offer versus written confirmation, or when it finds bad faith simply because a parent accepts employment shortly after job loss when no other opportunities were available locally.
Katherine A. v. Jerry A.
No. 22-ICA-52 · Filed Jun 15, 2023
ICA
Majority
Reversed and Remanded
The ICA held that the 2021 revision to West Virginia Code § 48-9-403 eliminated the previous presumption and burden-shifting test for relocating parents who exercised a significant majority of custodial responsibility. Under the revised statute, the relocating parent bears the burden of proving three elements: legitimate reasons made in good faith, that relocation is in the child's best interests, and that no reasonable alternative exists. The family court's order was insufficient because it ...
Stacey J. v. Henry A.
No. 18-0987 · Filed Mar 26, 2020
SCA
Majority
Reversed and Remanded
The family court must conduct a thorough analysis of all relevant factors when determining a child's best interests in custody modification cases following parental relocation. Courts must assess custodial responsibility by examining caretaking functions as defined in W. Va. Code § 48-1-210, not merely overnight custody arrangements, to determine which statutory provision applies under the relocation statute. A single factor analysis focusing only on which parent will better facilitate the ot...
Robert C., Jr. v. Kimberly C.
No. 13-0534 · Filed Apr 25, 2014
SCA
Majority
Affirmed
A parent with significant majority custodial responsibility (70% or more) may relocate with a child if the relocation is in good faith for legitimate purposes including being close to significant family or support networks, significant health reasons, or pursuing significant employment opportunities. The circuit court properly found that respondent had legitimate reasons to relocate to Texas based on her need for family support due to health issues and employment opportunities, and did not er...
Robert M. v. Jessica M.
No. 13-0879 · Filed Jun 13, 2014
SCA
Majority
Affirmed
A custodial parent's failure to marry her fiancé as originally planned does not constitute a substantial change of circumstances requiring modification of a parenting plan when the relocation was approved based on legitimate purposes including the fiancé's job promotion and role as a support network, not primarily on the marriage itself. The family court properly considered the best interests of the child and found the relocation was in good faith for legitimate purposes under W. Va. Code § 4...
C.L. v. S.L.
No. 12-1508 · Filed Feb 5, 2014
SCA
Majority
Affirmed
When a parent seeks to relocate with children to a distance that would impair the other parent's custodial time, the family court must apply W. Va. Code § 48-9-403(d) to determine if the relocation is in good faith for a legitimate purpose and reasonable. If the relocating parent fails to establish legitimate purpose, the court may modify the parenting plan based on the children's best interests and the effects of relocation. The family court's discretionary custody decisions will not be dist...
Robert W. v. Paulette W.
No. 15-1010 · Filed May 20, 2016
SCA
Majority
Affirmed
A residential parent with significant majority custodial responsibility may relocate with children when the relocation is for a legitimate purpose under W. Va. Code § 48-9-403(d)(1). The parent's testimony establishing that relocation would allow her partner to obtain better employment and spend more time with the family constitutes sufficient evidence to support relocation. Relocation that keeps children with half-siblings while maintaining reasonable visitation for the non-residential paren...
Dianna Brekke Storrie v. Christopher Michael Simmons
No. 35289 · Filed Apr 2, 2010
SCA
Majority
Reversed in Part
When a parent exercising a significant majority of custodial responsibility seeks to relocate children in good faith for a legitimate purpose to a reasonable location, West Virginia Code § 48-9-403(d)(1) requires the court to allow the relocation unless it would not be in the children's best interests. The family court cannot simply deny relocation based on best interests analysis without following the statutory framework that presumes relocation should be permitted when statutory criteria ar...
Kayla S. v. Preston S. and West Virginia Department of Human Services, Bureau for Child Support Enforcement
No. 25-ICA-198 · Filed Dec 4, 2025
ICA
Majority
Vacated in Part
The ICA held that the family court erred in denying the mother's relocation petition by failing to apply the current version of W. Va. Code § 48-9-403 (2021) and by not making sufficient findings regarding the three-part burden of proof required under Katherine A. v. Jerry A. The ICA also held that the family court improperly deviated from child support guidelines without justification, failing to calculate support using the required formula or explain the basis for the $600 monthly award.
Nicole L. v. Steven W.
No. 18-0025 · Filed Mar 21, 2019
SCA
Majority
Reversed and Remanded
For purposes of the parental relocation statute, custodial responsibility includes duties innate to parenthood such as caretaking functions defined in W. Va. Code § 48-1-210. If a parent exercising a significant majority of custodial responsibility proves that a proposed relocation is in good faith for a legitimate purpose, the location of the proposed move will be presumed to be reasonable. To overcome this presumption, the opposing parent must prove that the purpose is substantially achieva...
Julie M. v. Michael M.
No. 20-0993 · Filed Jan 12, 2022
SCA
Majority
Affirmed
When a parent seeks to relocate with children under a shared custody arrangement, the family court must determine whether the relocating parent exercises a significant majority of custodial responsibility to be entitled to a presumption of reasonableness. The family court's finding that a parent's relocation was unreasonable because similar employment opportunities were available much closer to the children's established lives will not be disturbed absent clear error.
Nathan H. vs. Ashlee R.
No. 19-0122 · Filed Jun 10, 2020
SCA
Majority
Affirmed in Part
Circuit courts lack jurisdiction to hear parental relocation petitions while an appeal is pending, as family courts have exclusive jurisdiction over parenting plan modifications under W. Va. Code § 51-2A-2(a)(9). When neither parent exercises a significant majority (70% or more) of custodial responsibility, relocation requests that are in good faith for legitimate purposes to reasonable locations require courts to reallocate custody based on the child's best interests. Child support deviation...
In re Adoption of R.B.
No. 24-310 · Filed Nov 25, 2025
SCA
Majority
Vacated
The circuit court abused its discretion in denying a stepparent adoption petition without making sufficient findings of fact and conclusions of law regarding the statutory abandonment factors under W. Va. Code § 48-22-306(a). A family court order suspending parental contact does not terminate parental rights and does not prevent a parent from filing pleadings to resume parenting time, so the circuit court must properly consider the abandonment statute's requirements.
Katherine A. v. Jerry A.
No. 22-ICA-52 · Filed Jun 15, 2023
ICA
Majority
Dissent from Reversal
The dissenting judge agreed that 2021 amendments to West Virginia Code § 48-9-403(d) eliminated the presumption favoring relocation with the primary custodial parent, placing the burden on the relocating parent to prove each statutory element by a preponderance of the evidence. However, the dissent concluded that the family court's order was not so deficient as to warrant reversal under the deferential standard of review, finding that the family court properly evaluated the evidence before it...
ROBERT F. v. KORRIE H.
No. 23-ICA-278 · Filed Apr 22, 2024
ICA
Majority
Affirmed in Part
The ICA held that family courts must apply the principles of West Virginia Code § 48-9-403 when considering relocation matters in initial custodial allocation orders, even when the relocation occurs before formal custody proceedings are initiated. The family court erred by failing to conduct the required analysis under § 48-9-403(d)(1) regarding whether the mother proved her relocation was legitimate, made in good faith, and in the child's best interests. The court's decisions regarding presc...
Cited Statutes (4)
W. Va. Code § 48-11-403
Relocation of a parent
Chapter 48: DOMESTIC RELATIONS
· Article 11: SUPPORT OF CHILDREN
(a) The relocation of a parent constitutes a substantial change in the circumstances under subsection (a), section four hundred one of this article of the child only when it significantly impairs either parent's ability to exercise responsibilities that the parent has been exercising.
(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 practicable under the circumstances, to any other parent with responsibility under the same parenting plan. Notice shall include:
(1) The 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) Information for the other parent as to how he or she may respond to the proposed relocation...
W. Va. Code § 48-9-403
Relocation of a parent
Chapter 48: DOMESTIC RELATIONS
· Article 9: ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN
(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 ci...
W. Va. Code § 48-20-207
Inconvenient forum
Chapter 48: DOMESTIC RELATIONS
· Article 20: UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
(a) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court's own motion or request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state ...
W. Va. Code § 48-20-203
Jurisdiction to modify determination
Chapter 48: DOMESTIC RELATIONS
· Article 20: UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
Except as otherwise provided in section 20-204, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subdivision (1) or (2), subsection (a), section 20-201 and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 20-202 or that a court of this state would be a more convenient forum under section 20-207; or
(2) A court of this state or a court of the other state determines that the child, the child's parents and any person acting as a parent do not presently reside in the other state.
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