Q: Can I move out of state with my son with no custody agreement?
My son is 17 months old, his father left us (at his mothers) for someone else and then wound up back in jail feb 2018 on a probation violation(7 time felon) and failed cocaine test. he has not financially helped since may 2017, theres no custody agreement. I have no one in VA and want too take my son back home to CO where i have an entire support system and help finding a steady income and home. He threatens too get custody of my son when he gets out next year. Can I go home to CO with my son and what are the chances of him getting any sort of custody when he gets out?
A:
If there is a Virginia custody order, there will be a provision in it that requires you to give 30 days advance notice of a relocation.
If you and your son move, the father can do nothing, or he can seek to compel your son to return to Virginia. The father cannot make you move.
If your son has resided in Virginia for the past six months, then Virginia will be the "home state" for purposes of the Uniform Child Custody Jurisdiction Enforcement Act, UCCJEA. That means that Virginia, and only Virginia in the entire world, can adjudicate matters of custody except for emergencies.
After your son resides in Colorado for six months, Colorado becomes the home state and takes over jurisdiction if there has been no filing in Virginia.
Once your son turns 18, custody is irrelevant.
So, whether the father seeks to take physical custody on a temporary basis is unlikely if he is in jail. By the time he gets out of jail, jurisdiction will move to Colorado. By the time a Colorado court hears a custody matter, your son will be 18.
Steve Miyares agrees with this answer
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