West Virginia Info

West Virginia Divorce Start Your Divorce Find Professionals West Virginia Articles Divorce Facts Divorce Grounds Residency Divorce Laws Mediation/Counseling Divorce Process Legal Separation Annulments Property Division Alimony Child Custody Child Support Divorce Forms Process Service Grandparent Rights Forum West Virginia Products Divorce by County

West Virginia Articles

Custody & Visitation SEE ALL

Info Categories

Contemplating Divorce Children & Divorce Divorce, Dollars & Debt Divorce Laws Divorce Process Divorce Negotiation SEE ALL

More Information

Articles Checklists Research Center Cases of Interest Dictionary Encyclopedia Encyclopedia (pop-up) Blogs

For Professionals

Advertise With Us Free Network Page Join Our Network Submit Articles Case Management Sign In

Network Sites

West Virginia Divorce Support West Virginia Divorce Online

Post Divorce Relocation Rights of the Custodial Parent - Part II
Historical Perspectives of The Right to Travel:

A. Federal Organic Law

The Articles of Confederation, the form of government adopted by the United States after the Revolution, but before the Constitution of 1787, provided that the citizens of each State of the then United States would have the "...free ingress and regress to and from any other State,". (2) So basic and widely accepted was this right that no explicit provision regarding the same is embodied within the United States Constitution of 1787, apparently on the premise that the right to travel was necessarily conjunctional with the general liberty concepts of a more centralized national government. (3)

In 1849, Chief Justice Roger Taney concisely ascribed this right to fundamental notions of federalism, when he stated:

For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our States. (4)

The textual source of the right to travel has been alternately described as an incident of national citizenship and as an attribute of personal liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. (5)

At any rate, freedom to travel throughout the United States and within the individual States has long been recognized as a fundamental right and privilege under the Constitution. (6) Stated more precisely, our national judiciary from the beginnings of the Republic has accepted and embraced the idea that "...the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement." (7) In short, irrespective of its statutory or organic derivation, a state may not tax or penalize a federal citizen for exercising his or her right to move from one state to another. (8)

Under the guise of a "compelling state interest, states may impact on the travel right by any one or more of three recognized devices: (a) a law proscribing or preventing travel; or (b) a law that has as its primary purpose the hindrance or impeding of travel; or (c) a law of citizen classification that operates to penalize or exact a sacrifice in the exercise of the travel right. (9)

Citing protection of children as a compelling state interest, relocation restrictions upon a divorced custodial parent generally fall within the third category. (10)

West Virginia Endorsements

B. Although never squarely addressing the issue within a domestic relations case, West Virginia, in Spradling v. Hutchinson, has recognized a right to travel pursuant to the Federal Constitution in the statutory construction, and thus a limited application, of West Virginia Code 8-14-12, which required a local residency period for a municipal or county police candidate. (11) Specifically, the West Virginia Court, in an example of inverse logic, accomplished acceptance of the Federal travel precept, by declaring the statute unconstitutional to the extent of the residency prerequisite for police aspirants on the ostensible grounds that neither a rational basis nor a compelling State interest existed for the restriction. (12)

The only occasion offered to the West Virginia Court for expansion of the Federal travel right, adopted by Spradling, to the area of family law, occurred six years later when that precise challenge was mounted against a Wayne County divorce decree that limited a mother's exercise of custody to Wayne and Cabell Counties. (13)

Essentially affirming the Spradling concepts of travel rights, the West Virginia tribunal cryptically remarked that child welfare concerns may supersede the right to travel, then promptly side-stepped the issue and decided the case on the best interests standard.


Was this helpful? Like our site & let us know.

Related Articles


Start West Virginia Divorce Start Your West Virginia Online Divorce Today
Easy, Fast and Affordable with a 100% Guarantee.
West Virginia Divorce Find West Virginia Divorce Professionals in Your Area:
Join the Network
West Virginia Divorce Products, Services and Solutions West Virginia Divorce Products, Services and Solutions
West Virginia Divorce Resources to Help You Through the Process.
Online Parenting Class West Virginia Mandatory Online Parenting Class
Easy and convenient - complete at your own pace online.
Divorce and Custody Books Discount Divorce Bookstore
Over 100 Titles of the Best Books on Divorce & Custody.
Divorce Downloads Divorce Download Center
Instantly Download, Books, Manuals, & Forms.
Divorce Worksheet Free West Virginia Divorce Worksheet & Separation Agreement
Your Guide to Get Organized and Put Everything in Writing.
   
West Virginia divorce law establishes a preference for parents resolving custody issues between themselves. The court possesses the power to issue custody orders when parents are unable to reach agreement. To that end, West Virginia law directs parties in any domestic relations case to develop a parenting plan. The parenting plan deals with the nuts and bolts of effective divorced parenting.
Divorce Lawyers & Mediators
 

Find Professionals

Easily Connect With a Lawyer or Mediator
Have Divorce Professionals from Your Area Contact You!
Enter Your Zip Code:

 

Start Your Divorce File for a West Virginia Divorce

 

Settle Your Divorce Negotiate Your West Virginia Divorce

 

Support Forum West Virginia Support Forum

Children In Between - Online Parenting Class


FEATURED TOOL - Name Change Notification Kit (easily complete your name change without the headaches)

Guarantee Official PayPal Seal Facebook Twitter Versign Secure Site
Limited Offer Women's Rights Manual For Divorce
Cover Price: $55.95
Your Price: $29.95
You Save: $26.00

"The Absolute Best Investment in Your Divorce"

Men's Rights Manual For Divorce
Cover Price: $55.95
Your Price: $29.95
You Save: $26.00

"Uncover Your Options and Unleash Solutions"