There are a high concentration of military families in the area so it’s no surprise we have many clients and friends of the firm that are in the military. Because of this high population, I would like to expand on our January newsletter’s article on the 5 myths of military divorce, specifically discussing custody concerns of deploying military parents.
In 2008 Virginia enacted the Virginia Military Parents Equal Protection Act. This law addresses custodial decisions when a military parent is deploying. Pursuant to its terms, any custody order based in whole or part on the military service and deployment of the military parent will be temporary and will revert to the previous order when deployment ends. You cannot use the fact that a parent is in the military and subject to deployment as an argument for changing the child custody/visitation order to prejudice the parental rights of that military parent. If there is no order in place, the courts will expedite a temporary hearing to establish custody/visitation and support to ensure the parent-child relationship is protected until such time deployment is over and a permanent order can be established.
Although this Act helps define situations where a military parent is deploying, it is important that a military parent have a custody order in place from the beginning to avoid an unnecessary court battle. Military members are relocated throughout their career and if the deploying military parent lets the non-military parent who lives in a different state have custody while he or she is deployed, then that state could become the home state of the child. A court order in Virginia specifying terms will help ensure jurisdiction over custody/visitation stay here.
Another issue that should be considered is if both parents are military (including Guard and Reserve) and subject to deployment. In such situations, third party custody designations need to be considered. Yet another consideration is that of remarriage and the role of the step parent. While the military may require a Family Care Plan, be advised that any designation within that document will not trump Virginia law. Custody does not legally transfer with a designation made by the parents nor will it with a Power of Attorney. Courts have the sole right to assign custody, not the parents (though courts will usually approve any arrangement agreed upon by both parents). Also keep in mind that third parties such as step-parents or grandparents are rarely given custody over a parent. There have been many cases where a military parent felt he/she had custody covered only to have the children be given to the other parent while deployed because of the lack of a proper court order prior to leaving.
How your custody order is written can mean the difference between relative harmony between parents or a costly legal battle due to loopholes. It is important that if you are in the military that you have the right legal documents in place to protect your rights and that of your children.