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Military Deployment and Child Custody in Virginia

Military Divorce“I’m Deploying! How does that affect my custodial or visitation rights to my child?”

Deploying is a unique and difficult fact of life for most every military family. For those parents involved in a custody or visitation dispute, deployment can be an even more stressful event, as the deploying parent must also be concerned with arrangements for his or her child during the required absence.

Given that Virginia has the second largest military population in the United States, it is not surprising that in 2008 the Virginia legislature addressed the concerns of deploying parents with a statutory scheme designed to protect the custodial or visitation rights of our men and women in uniform.

The Virginia Military Parents Equal Protection Act, incorporated into Virginia Code Sections 20-124.7 through 20-124.10, defines who is considered to be a deploying parent, including not only active duty but activated reserve units, and grants special rights to our active duty servicemembers with respect to custody and visitation.

The Act defines a deploying parent as “a parent of a child under the age of 18 whose parental rights have not been terminated by a court of competent jurisdiction or a guardian of a child under the age of 18 who is deployed or who has received written orders to deploy with the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof.”

In cases where a custody order is already in place, the Act allows any deploying parent to:

  • temporarily modify the current custody or visitation order to ensure that the servicemember’s deployment status is clearly stated as the reason for a change in the order and to ensure that the matter is re-heard within 30 days of the servicemember’s return from deployment; and
  • delegate his or her visitation time in the existing order to a family member with whom the child has a close and substantial relationship, which includes the spouse of the deploying parent (i.e., the child’s current stepparent).

In cases where no custody order is in place, the Virginia Military Parents Equal Protection Act:

  • grants the deploying parent the right to file a petition with the court which specifically identifies the servicemember as a parent about to deploy and requires the court to place the deploying servicemember’s petitions before other matters on the court’s docket; and
  • allows the court to accommodate any deploying parent who is unable to appear in person due to pre-deployment training or actual deployment (e.g. by allowing that parent to testify by telephone).

All orders of the court based upon a deployment are temporary, modifiable upon the servicemember’s return, and will require the non-deploying parent to “reasonably accommodate” the complicated schedule of the deploying parent as well as the servicemember’s leave schedule during deployment.

The Virginia Military Parents Equal Protection Act as incorporated into Virginia Law purposes to ensure that deploying parents are not prejudiced by their mandatory call to service and seeks to promote the “protection of the parent-child or guardian-child relationship,” by requiring the court and the non-deploying parent to accommodate the schedule of the deploying servicemember.

It is important that deploying parents do not simply leave their custody and visitation rights in limbo or assume that a Family Care plan will suffice during deployment.

Whether you are the deploying parent, the non-deploying parent or a family member of a deploying servicemember, be sure to review the facts of your case with an experienced family law attorney. The family lawyers at Livesay & Myers have years of experience in the courts of Northern Virginia with custody cases involving servicemembers. Contact us to schedule a consultation today.