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:

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)

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.