Any person required by DOD Instruction 1342.19 to maintain a Family Care Plan must do so in a certain amount of time. Other than the requirements with respect to timely filing, the instructions are fairly broad as to what can and should be included in the FCP.
At a minimum, a Family Care Plan allows the military member to designate another party to care for his or her child during any period where the member is unavailable due to military service obligations.
Though the DOD requires this plan of action and files it in each servicemember’s record, servicemembers in Virginia should be aware that a Family Care Plan does not trump a custody order from a court.
In addition, a FCP does not have any bearing on the decision of a Virginia court in regard to child custody. Instead, our courts are required to base their custody decisions on the statutory factors contained in Virginia Code Section 20-124.3.
Take for example a case where an active duty father has primary custody of a child, his ex-wife (the child’s mother) has visitation, and the father has remarried. Even though the servicemember may have a Family Care Plan on file that delegates his rights during his deployment to his current wife (the child’s stepmom) rather than to the child’s biological mother, a Virginia court is under no obligation to follow that FCP.
In fact, the court in that situation will almost always grant temporary custody to the natural mother rather than the stepmother during the father’s deployment—unless some evidence exists that the court feels would make such a delegation contrary to the child’s best interest.
A Family Care Plan is required by the military and is a helpful and necessary tool in ensuring that our forces are prepared for service without having to worry about custody and family issues. However, where there is conflict between a FCP and a court order, the court order prevails.
Therefore, servicemembers should not rely on a Family Care Plan to dictate the custodial arrangements for their children while they are deployed, and should consult with an attorney with specific experience in military custody cases.
Livesay & Myers, P.C. has a team of family lawyers with years of experience handling custody cases involving servicemembers. If you are a servicemember or former spouse of a servicemember, and involved in a custody dispute in Northern Virginia, contact us to schedule a consultation today.