If you have a child and are contemplating a divorce or separation from your spouse or partner, it is essential that you educate yourself as to your rights and obligations under the law. For servicemembers, the choice of counsel can be difficult, as many attorneys handle military divorce cases very infrequently, if at all. In Part One of this series on military divorce, we addressed the grounds for divorce in Virginia, the benefits of separation agreements, how Virginia’s Courts equitably distribute marital property and debts, and spousal support. In Part Two, we address the issues surrounding child custody, visitation, and support as they apply to servicemembers in Virginia. This post will describe just a few of the essential facts and issues you should be aware of before embarking on such a case in Virginia.
I. Jurisdiction. When you first meet with your attorney, he or she will likely ask you for some basic information, such as your home address, whether your child lives with you, and how long you and your child have lived together. Why? The reason is that these facts are essential to determining whether Virginia’s courts have the jurisdiction, i.e. authority, to hear your custody case. Virginia has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), along with 49 other states. The UCCJEA sets forth when a court in Virginia has jurisdiction to enter an order as to a child’s custody or visitation. For example, commonly Virginia has jurisdiction due to the fact that Virginia is the child’s “home state” at the time the petition for custody or visitation is filed. The term “home state” refers to the state that the child has lived in during the last six months. For infants, the home state is where the child has lived from birth. Virginia also has jurisdiction under special circumstances where, for example, the child has no home state. (Yes, it’s possible). The important thing to take away is that issues regarding jurisdiction are complex and have to be addressed on a case-by-case basis whenever the simple home state test is not satisfied.
II. Child Custody and Visitation: the Best Interests Test. In a custody dispute between parents, the judge will attempt to determine what arrangement would be in the child’s best interests. For example, if it would be the child’s best interests to live primarily with his mother, but to have frequent visitation with his father, and to have his father join with the mother in making decisions regarding the child’s fundamental welfare, then that is what the court will order. Specifically, in such a case the court would order the parents to have joint legal custody of the child, with the mother receiving primary physical custody, and the father receiving frequent visitation according to a set schedule.
In making this decision, courts must look to the factors set forth in Virginia Code Section 20-124.3. However, that Code section is written by lawyers, for lawyers, rather than in standard, non-legal English. In this lawyer’s opinion, the judge will generally want to the following questions answered during the course of your custody/visitation case:
- Where are the children currently living?
- Which parent has had the child for the longest recent period?
- Which parent is most stable? A series of jobs and addresses does not help.
- What kind of job, if any, does each parent have? It helps to have a flexible schedule and to work near the child’s school or day-care provider.
- Which parent has kept the marital home?
- In regard to parenting chores, such as housework and driving the child to school, which parent has done exactly what over the last few years?
- Which parent will do the best job of ensuring contact with the other parent and with extended family members?
- Which parent has demonstrated the best ability to put the child’s needs above his or her own?
- Does the child have a preference? This will count if the child is old enough.
- With which parent is the child most stable and high-achieving? School grades will come into play here.
- Does either parent have a criminal history or history of abuse or neglect?
III. Modifying a Previous Order. Custody/visitation determinations are not permanent and are subject to being modified in the future. A party seeking to modify an existing custody/visitation order bears the burden of proving that a material change in circumstances has occurred since the last custody order and that a change of custody would be in the children’s best interests. Moreover, if another state has already entered a custody or visitation order, in order for a Virginia court to modify the order generally it must be the case that the child and both of his parents have left that state.
IV. Special Rights of Servicemembers. If you are a servicemember facing an order of deployment, it is important to know you have special rights under Virginia law. Specifically, you have the right to request visitation for one of your family members, including your current spouse if you have remarried. In addition, your petition will receive precedence on the Court’s docket, as it must be heard on an expedited basis.
V. Child Support. The amount of child support is typically determined using Virginia’s presumptive guidelines, which take into account the gross monthly income of both parties and then distribute the child’s presumptive need for support proportionately between the parties. The guidelines are set forth in Virginia Code Section 20-108.2 and take into account the money the parents may be spending on the child’s child care, health care, and other expenses.
If you already have custody and are willing to accept the guidelines amount of support, then you should consider applying for child support through the Virginia Department of Child Support Enforcement (DCSE). DCSE can issue an appealable, administrative order requiring a parent to provide support in accordance with the guidelines.
If you do not already have custody, then it probably makes sense to file a petition for support at the same time that you seek custody. The Court will first calculate the amount of support using the guidelines. However, the Court will hear any argument that it should deviate from the guidelines for good cause. Usually, the Court must make a special finding regarding a parent’s ability to provide support for the child. For example, if a parent is voluntarily unemployed or unemployed, then the Court will likely impute income to that parent, meaning that the Court will recalculate the guidelines using the income that party would have if he or she were working to his or her full capacity.
VI. Military Nonsupport Policies. If you are a servicemember, please remember that you must satisfy military regulations as they pertain to issues regarding support for your family members. Because each service branch has a different methodology, you should contact your legal assistance office to determine your minimal support obligations to your spouse and child. However, please remember that you are obliged to provide support according to your branch’s regulations only in the absence of an agreement or court order to the contrary.
VII. Conclusion. I hope you have enjoyed this overview of Virginia custody, visitation, and child support law as it pertains to servicemembers. If you have questions about your rights as a servicemember or non-servicemember spouse in a military divorce or custody, visitation or support dispute, it is best to consult with an experienced attorney as soon as possible in the process. The military divorce lawyers at Livesay & Myers, P.C. have years of experience in representing servicemembers and spouses across Northern Virginia in military divorces and custody disputes. Contact us to schedule a consultation today.