Child custody and visitation cases are always complicated, but they can prove especially difficult for military families.
This is particularly true when it comes to deployed parents, for whom visitation is often difficult or even impossible.
Fortunately, like most states, Virginia has laws in place to lay out and protect the rights of deployed parents. By understanding these laws, military families can find custody solutions that work for everyone involved.
In this article, we’ll go over the main laws governing child custody and military deployment in Virginia. However, if you feel confused or unsure, never hesitate to contact legal counsel.
The Virginia Military Parents Equal Protection Act
The Virginia Military Parents Equal Protection Act is the main law governing child custody for deployed parents in Virginia.
It exists to supplement a family care plan by ensuring that the court will accommodate a deployed service member’s complex schedule.
Who does the Equal Protection Act apply to?
As the Act’s name implies, it offers broad protections to all “deploying parents or guardians.”
In legal terms, that means you need to fulfill a couple of specific requirements to qualify for the Act’s protections:
- You must be the legal parent or guardian of a child under the age of 18. If your parental rights have been terminated, you do not qualify for protection under the Equal Protection Act.
- You must be deployed with any branch of the U.S. military, including reserve forces. For the purposes of the law, deployment includes both combat operations and other forms of active service.
How does the Equal Protection Act protect deployed parents?
If you already have an existing custody order, the Equal Protection Act allows you to modify that order in a few different ways.
First, you may delegate the visiting time you already have to a family member in the event that your deployment makes visitation impossible.
However, the family member must have a real and substantial relationship with the child. This may include the child’s stepparent or grandparent.
The individual in custody of the child must facilitate these visits, or else prove to the court that such visits are not in the child’s best interests.
You may also rescind visitation rights at any time during your deployment.
After you return from your deployment, the court will set a date to re-hear the matter.
This will always be within 30 days of your return. Until this occurs, the modified court order will remain in place.
If you do not have a custody order before going on deployment, the Equal Protection Act also allows you to file for one.
This will grant you all of the benefits described above.
The Equal Protection Act protects the rights of deployed parents in other ways as well.
For example, any changes in custody or visitation made due to deployment must be temporary.
Such orders also must leave room for the deployed parent to continue communicating with their child by phone or other digital means.
Additionally, once the service member returns from deployment, they are entitled to an expedited hearing on the altered order to determine if it should extend past deployment.
What does the Equal Protection Act mean for non-deployed parents?
The Act also requires the non-deploying parent or guardian to fulfill certain legal obligations.
These obligations include requirements such as:
- You must “reasonably accommodate” the needs of the other parent’s deployment schedule. Of course, what’s “reasonable” will come down to the judgement of the court or arbiter. However, most courts will try to find a solution that causes the least professional disruption to both parties.
- Additionally, you must reasonably accommodate requests for remote contact between the deployed parent and the child.
- If requested, you must provide the court with a written notice at least 30 days in advance of any change to your address or phone number.
The Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act is a law designed to ease the financial and legal burdens on U.S. servicemembers.
While primarily concerned with providing financial support to servicemembers, SCRA also has implications for child custody cases.
Unlike the Virginia Military Parents Equal Protection Act, the SCRA is a federal law. However, its provisions still apply in state family courts.
How the SCRA Stay of Proceedings Works
In addition to other provisions, SCRA protects service members from default judgments when it appears their absence in court is due to their military deployment.
A “stay of proceedings” may be entered in divorce or custody proceedings initiated by the non-deploying parent or guardian.
The stay will last for at least 90 days, after which the custody proceedings will resume with or without your consent.
This stay may be initiated in two different ways, depending on whether you have “actual notice” of the custody proceedings.
If you don’t have “actual notice”—that is, if you haven’t yet appeared in court, or if your attorney cannot get in contact with you—the court may begin the 90 day stay of proceedings automatically.
They will do so as long as the court determines that you have a plausible defense available, and that your lawyer has made an attempt to contact you.
If you have already appeared in court on the matter, which is likely the case in ongoing proceedings common to custody and visitation, you will have to file an application for a stay of proceedings.
This application must include testimony from a commanding officer showing that granting leave to attend your legal proceedings is not an option in your case.
Keep in mind that this also applies in custody proceedings which began prior to your deployment.
Misconceptions About SCRA
While SCRA provides a stay for all legal proceedings, it does not stop the court from reconsidering the facts and circumstances of your case.
Thus, if a judge decides that it is in your child’s best interests, they may still transfer custody to the non-deploying parent.
While such a motion is temporary, it can nevertheless have lasting implications in your overall custody case.
For this reason, it is always best to keep in close contact with your family law attorney. This is true even if you are in the 90 day SCRA stay of proceedings window.
Conclusion
While both Virginia and federal law offer deployed servicemembers some protections in custody cases, neither provides universal protection.
An experienced family law attorney can keep you informed about the changing situation of your particular case, allowing you to understand your legal options at every step of the custody proceedings.
