Power of Attorney for Care and Custody of Children in Virginia
A written agreement between parents or a court order regarding custody and visitation are the most common methods by which custody and visitation are determined between parents who are no longer together. However, in the event that one parent will be absent from the country, a power of attorney may be an appropriate means of giving someone who is not a custodian or guardian of your children the ability to act on your behalf during their absence.
Virginia law provides for children’s enrollment in school when living with relatives who are not their parents, by use of special “kinship care arrangements.”
Virginia also allows military families to have a power of attorney regarding the care of minor children, by recognizing the military power of attorney instrument provided in 10 U.S.C. § 1044(b). See Virginia Code § 64.2-1604 and the Interstate Compact on Educational Opportunity for Military Children, found in Virginia Code § 22.1-360.
However, Virginia law does not have any specific provisions regarding a power of attorney for children of non-military families. In a 2016 report, the Virginia Commission on Youth evaluated and made recommendations regarding a power of attorney for the care, custody, and property of minor children. This was after Delegate Kathy J. Byron introduced House Bill 2034 during the 2015 General Assembly Session. That bill would have created a new power of attorney to delegate parental or legal custodial powers to another person for up to one year. However, HB 2034 did not progress past the House Courts of Justice Committee.
Although it is not possible to designate custody of a minor child in a will, it is possible to designate a guardian of a minor in a will. However, there are instances in which a parent may merely be absent for a period of time, which would not cause the will to go into effect. While establishing a standby guardianship is an option, Virginia law permits a parent to appoint a standby guardian only in the event that a parent “has been diagnosed, as evidenced in writing, by a licensed physician to be afflicted with a progressive or chronic condition caused by injury, disease or illness from which, to a reasonable degree of medical probability, the patient cannot recover.” See Virginia Code § 16.1-349.
Although there is no specific statute in Virginia establishing a power of attorney for delegating parental or custodial powers, it is possible to use a power of attorney to designate the temporary care and custody of children in Virginia.
Virginia Code § 64.2-1600 defines a “power of attorney” as “a writing or other record that grants authority to an agent to act in the place of the principal.” It is a legal document allowing you to appoint someone to act on your behalf. A power of attorney for the care and custody of children gives someone who is not a custodial parent or legal guardian the power to care for the children and make educational and health care decisions for the children in place of the parents. This document is intended to be temporary.
To prepare a power of attorney for the care and custody of children, consider what types of powers you want your agent to be able to have. Keep in mind that a power of attorney cannot grant a power that you do not have as a parent. This power may also be time limited. For example, if a parent is on active military duty and is set to deploy, the parent may create a power of attorney to be in effect during the time of that deployment only. A power of attorney can be revoked at any time. A power of attorney is not a relinquishment or termination of your parental rights.
Disputes between biological parents are traditionally best resolved by an agreement between the parents or a court order regarding custody and visitation of the minor children. However, there may be some cases in which a power of attorney for the care and custody of children is more appropriate. This would be the case if one of the parents will be temporarily absent and unavailable to care for the children. For example, if one of the biological parents is in the military and may be deployed, or if the custodial parent of a minor child who is a citizen may be deported, then it would be important to establish a power of attorney for the care and custody of the children. If you are planning on going on a vacation without your children, it may be a good idea to establish a temporary medical power of attorney for your children so that the children’s caregiver can make medical decisions for your children on your behalf, should an emergency arise in your absence.
If you require a power of attorney for care and custody of your children, be sure to consult with an attorney who has experience with both estate planning and family law. If you are a resident of Northern Virginia, Livesay & Myers, P.C. can help. We have a team of experienced estate planning lawyers who also have extensive experience in Virginia family law. Contact us to schedule a consultation today.