Background
Katherine A. and Jerry A. married in 2008 and have two children together. In 2022, Katherine asked Jerry to relocate the family to Alexandria, Virginia, so she could accept a new job offer. Jerry refused, and Katherine filed for divorce and moved to Virginia without reaching agreement. The Ohio County Family Court named Jerry the primary residential parent in August 2022. Katherine appealed, and the Intermediate Court of Appeals (ICA) remanded for a fuller best-interests analysis and a meaningful examination of whether reasonable alternatives to relocation existed.
On remand, the family court entered a new order on August 28, 2023, finding that remaining in West Virginia with Jerry was in the children’s best interests and that Katherine had not pursued reasonable alternatives before accepting the Virginia position. The court again designated Jerry as primary residential parent. Katherine’s motion for reconsideration was denied, and the court subsequently awarded Jerry attorney’s fees by order of April 29, 2024. The ICA affirmed all three rulings, and Katherine appealed to the Supreme Court of Appeals of West Virginia.
The Court’s Holding
The Supreme Court of Appeals summarily affirmed the ICA’s decisions, finding no reversible error. Applying the standard set out in Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024), the Court reviewed factual findings for clear error, application of law to facts for abuse of discretion, and legal questions de novo. The Court found that the family court’s conclusion — that relocation was not in the children’s best interests and that Katherine failed to explore reasonable alternatives — was supported by the record.
The Court also rejected Katherine’s challenge to the attorney’s fees award, finding sufficient factual findings to support it. Katherine’s argument that the family court improperly took judicial notice of facts outside the record was not considered because she failed to provide required citations to the appendix record showing where the issue had been raised below, as required by West Virginia Rule of Appellate Procedure 10(c)(7).
Key Takeaways
- A parent seeking to relocate bears the burden of proving both that relocation is in the children’s best interests and that reasonable alternatives to relocation were explored before accepting a job offer elsewhere.
- West Virginia courts apply the current version of W. Va. Code § 48-9-403 governing relocation, not a prior version, where the statute was in effect at the time of the underlying custody hearing.
- Appellate arguments unsupported by specific citations to where the issue was preserved below will be disregarded under W. Va. R. App. P. 10(c)(7).
- One justice dissented solely on procedural grounds, arguing the case warranted oral argument and a formal opinion rather than a memorandum decision.
Why It Matters
This case underscores that West Virginia family courts will scrutinize unilateral relocation decisions closely, placing the burden squarely on the relocating parent to demonstrate both a best-interests justification and good-faith efforts to find alternatives. Attorneys advising clients contemplating a job-driven move should document any alternative arrangements considered before the move is made, as failure to do so can be decisive in custody disputes.
The dissent’s objection — that the case deserved full briefing and a formal opinion — signals that at least one justice viewed the relocation and attorney’s fees questions as sufficiently complex to merit more developed precedent. Practitioners in West Virginia custody matters should watch for future cases that may produce binding guidance on the scope of the relocation analysis required under § 48-9-403.