Child Custody and Visitation During a Deployment

When a relationship ends, and two loving, fit parents are involved in a child custody dispute, the court prioritizes the best interests of the child over almost everything else. In Virginia, that means, in part, striving to assure children frequent and continuing contact with both parents.

When one or both of a child’s parents are active duty servicemembers, deployments can make assuring that contact more difficult. As a result, the Commonwealth has taken extra steps to protect the parent/child relationship during that time apart. In 2008, Virginia enacted the Virginia Military Parents Equal Protection Act.

Who Is Covered by the Act?

The Act applies to parents who are deployed or have received orders to deploy with the US Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any of their reserves.

In this context, merely being stationed overseas may not count as deployment. The Act only applies when a servicemember is ordered to report for active service and may not be accompanied by any family member.

What Does the Act Do?

The Virginia Military Parents Equal Protection Act gives the deploying parent an opportunity to ask the court for a temporary order to address the issues raised by the deployment.

What Protections Does the Act Offer During a Deployment?

If the deploying parent had physical custody or visitation rights before the deployment, the court can delegate those visitation rights to that parent’s family.

If there was no order regarding custody or visitation prior to the deployment, the deploying parent may file an action and get priority on the court’s docket. If the parent isn’t able to appear at the hearing, the court may allow the parties and witnesses to appear via video or telephone.

The court will order that the nondeploying parent facilitate phone calls and email between the children and the deployed parent. The court will also require the deploying parent to provide reasonable notice to the other about his or her leave schedule and require the nondeploying parent to reasonably accommodate that leave.

What Happens After the Deployment?

When the deploying parent returns, the court will give that parent priority on its docket to modify the custody or visitation arrangement again. If the nondeploying parent does not want the order from before the deployment to be reinstated, it will be his or her burden to show that the prior arrangement is no longer in the child’s best interests.

What About When Neither Parent Is Deployed?

When neither parent is deployed (as the Virginia Military Parents Equal Protection Act defines it), then the Act does not apply. The court must consider all the facts and circumstances at the time of the hearing to determine the best interests of the children without giving any special preference to either parent.

This issue was recently examined by the Court of Appeals in Rubino v. Rubino, 64 Va. App. 256 (2015). In this divorce case, the parties were seeking an initial custody determination. The servicemember parent was stationed in Hampton Roads and the non-servicemember parent was living in Pennsylvania.

The Circuit Court ruled that the Virginia Military Parents Equal Protection Act demonstrated that the legislature wanted to provide extra protection to military parents who were living in specific locations due to their orders. The Court of Appeals reversed. It held that the Act does not create a preference for military parents and that the court may only consider the interests of the parents when those interests independently benefit the children.

What Does That Mean for Me?

Whether you are a servicemember or a non-servicemember parent, a recent or upcoming deployment is a major event in the lives of your children. It will also have a large practical effect on your custody arrangement. Try to put aside your assumptions and “common wisdom” about custody and visitation. Child custody and visitation determinations are extremely fact-specific and are made considering the children’s best interests at the time of the hearing. As a result, their best interests could change during a deployment.

You may want to consult an attorney when you first learn the servicemember will deploy. During the consultation, discuss how the deployment may affect your custody scenario both before and after the servicemember returns.

Jennifer L. Fuschetti, Associate
Christie, Kantor, Griffin & Smith, P.C.

George A. Christie of Christie, Kantor, Griffin & Smith, P.C. was counsel for the Appellant in Rubino v. Rubino (Jennifer L. Fuschetti on briefs).


Please note: All information is current only as of the date of publication and applies only in Virginia unless specifically stated otherwise. This article is not intended to convey legal advice. Please consult an attorney in the relevant jurisdiction for advice regarding your situation.

When Can I File for Divorce?

Litigants in Virginia must establish grounds for divorce before the court will dissolve a marriage, so litigants may file for divorce once those grounds have accrued. The Code of Virginia provides four distinct categories of grounds for divorce. A spouse may start divorce proceedings once s/he has a good faith basis to allege any of the following:

  1. Adultery

The term ‘adultery’ has a specific meaning in this context. A litigant can sue for divorce on the grounds of adultery when his or her spouse has had physical relations with someone outside of the marriage. There is a high burden of proof to establish adultery at trial; however, that burden does not apply to the initial pleadings. To begin the divorce proceedings alleging acts of adultery, the litigant needs a good faith basis for making the allegations.

There is a defense to an allegation of adultery besides denying it occurred. Very simply, if the injured spouse has forgiven or acquiesced to the adultery, that adultery cannot provide a ground for the divorce. A family law attorney can help you determine whether this defense might apply and whether you should consider filing on additional or alternative grounds.

Many clients ask about romantic relationships after the parties have begun living separate and apart. Any adulterous acts prior to the final dissolution of a marriage are potentially grounds for divorce and may impact the availability of spousal support. Before engaging in a new relationship prior to a final decree of divorce, you should consult a family law attorney to discuss the potential impact on your case.

  1. Felony Conviction

A spouse may be awarded a divorce from the bonds of matrimony when, after the marriage, either spouse has been convicted of a felony, sentenced to confinement for more than one year and has been confined for that felony offense. However, if the parties resume a marital relationship after knowledge of the confinement, the conviction can no longer serve as a ground for a divorce. A party seeking a divorce on the basis of a felony conviction may file as soon as he or she has knowledge of the confinement.

  1. Cruelty, Intimidation, Desertion and Abandonment

If one spouse is guilty of cruelty, has caused reasonable apprehension of bodily hurt, or has willfully deserted or abandoned the other, the innocent spouse may file for divorce. The divorce cannot be completed until one year after such an act of cruelty, an act causing reasonable apprehension of bodily harm, or willful desertion or abandonment. If you are concerned for your physical safety, or that of your family members, you should call the police immediately.

  1. Living Separate and Apart

Any spouse may file for divorce one year after the parties have begun living separate and apart without any cohabitation and with the intention that the separation be permanent. If there are no minor children of the marriage, and the parties have entered into a separation agreement, either spouse may file for a final divorce after a 6-month period of separation.

Very often, the separation date is the day that one spouse moved out of the marital home. Particularly in difficult financial times, however, some families cannot afford to maintain two households during the separation. The court will award divorces based upon separations that include time where the parties were separated under the same roof; however, the courts will scrutinize these separations more closely than others. You should proceed very carefully if you and your spouse intent to separate under the same roof. A family law attorney can help you determine what practices you and your spouse should put in place so that the court might approve your separation.

If either party has filed for a divorce on other grounds, the court can nonetheless award a divorce based on a 1-year separation so long as the parties have been separated for a year on the date of the final decree. Neither party may file on a separation, however, until the parties have already been separated for the applicable period.


What Do I Do in the Meantime?

If you have not separated from your spouse and anticipate that you will need to wait out a separation period before filing, you still have options to settle many of your affairs with your spouse. You may consult with a family law attorney at any time to learn about your likely rights and responsibilities at divorce. Many people use that information to negotiate a settlement agreement with their spouse. Properly executed agreements are binding contracts between the parties even before a divorce action is filed.

Unfortunately, settlement is not always an option. During a marriage, parties can get relief regarding custody and support from the Juvenile and Domestic Relations District Court. The J&DR court will not address the division of marital assets, though. The conduct of the household finances before and during a separation can have large effects on the status of the marital estate at divorce. A family law attorney can advise you about your options before and during your separation, as well as after the divorce action is filed.


Jennifer L. Fuschetti, Associate
Christie, Kantor, Griffin & Smith, P.C.


Please note: All information is current only as of the date of publication and applies only in Virginia unless specifically stated otherwise. This article is not intended to convey legal advice. Please consult an attorney in the relevant jurisdiction for advice regarding your situation.

How Is the Amount of Child Support Usually Determined?

The amount of child support that a court sets in any case depends on a number of factors. The two most basic issues are: 1) what are the gross incomes of the parents; and 2) what is the custody arrangement? Both of those issues can be the subjects of contentious litigation, but once they are established, the calculation of the presumptive child support amount is mandatory and straightforward.

Finding the Basic Support Obligation

The first step in the determination of child support is identifying the basic support obligation. Virginia Code § 20-108.2 includes a table for determining basic support obligations using the parties’ combined gross incomes and the number of children in need of support.

For purposes of this calculation, gross income includes pre-tax income from almost all sources, including those commonly reported on tax returns as well as gifts and untaxed income. However, certain benefits and support for other children may be excludable. A family law attorney can help you determine what is includible and excludible as income in your situation.

The formulas available to the court to calculate child support all use the basic support obligation. The court will decide which formula to use based on the custodial arrangement.

Determining Which Formula to Apply

There are 3 basic ways that parents share physical custody of their children. When one parent has the children with him or her most of the year that is called sole (physical) custody. When both parents have the children for substantial portions of the year (each having them for more than 90 days) that is called shared custody. When the parties have more than one child and each has one or more of the children for most of the year that is called split custody.

There is a different formula for calculating child support for each custody arrangement. The main components of each of the formulas include: the parties’ gross incomes, the cost of work-related child care, and the cost of healthcare premiums for the child(ren). The shared custody formula also takes into account the number of days each party parents the child(ren).

  1. Sole Physical Custody. To find the non-custodial parent’s child support obligation, begin by adding the basic child support obligation from the table to the cost of health care coverage and work-related child care. Assign that total to the parents in proportion to their incomes, crediting the amount a non-custodial parent pays for the children’s health care coverage. The non-custodial parent will pay his or her obligation to the other.
  2. Split Custody. To calculate split custody support, the courts will run the sole custody calculations above as though each parent had sole custody of the number of children residing with that parent. The court will then calculate the difference between the sole support obligations, and the non-custodial parent owing the larger amount will pay the difference to the other.
  3. Shared Custody. The shared custody formula is applied by default when each parent has custody or visitation with the children for more than 90 days per year. However, if the sole custody formula results in a lower support obligation, the lower support amount will be ordered if requested by the payor party.

The shared custody formula requires the determination of each parent’s “custody share.” The custody share is the proportion of days in a year that the children reside with that parent.

After an initial adjustment to the basic child support obligation, each party’s child support need is determined based on his or her custody share. The other parent is obligated to contribute to that need in the same proportion as his income relates to the combined income amount. The parties’ obligations are compared, and the parent with the higher obligation pays the difference to the other.


Are There Exceptions?

The child support figures calculated using the method above are presumptively correct. In each proceeding for a determination of child support, the court must determine the presumptive child support. After doing so, however, the court may increase or decrease that amount if it finds that using the guideline child support figure would be unjust. There is a particular set of factors the court may consider when deviating from the presumptive child support amount. A family law attorney could help you determine whether the court is likely to deviate from the guideline support in your situation.

What about Other Specific Expenses?

Unless the parties agree otherwise, the court will order them to split the unreimbursed medical expenses for the children, such as co-pays, in proportion to their relative incomes. Many parents also wonder about costs such as sports/activities fees, summer camps, car insurance, or other common voluntary expenditures for the benefit of the children. The court can ratify agreements to split these expenses or may deviate from the presumptive amount of support to accommodate them. However, neither party can be compelled to contribute to such expenses if they are not addressed in the court’s order. Once a court establishes or approves a child support arrangement, that amount is the total enforceable obligation of the payor parent.

Do I Need to Complete These Calculations Myself?

No. The courts, social services entities, and family law attorneys in Virginia use special software to complete these calculations quickly and accurately. Parents need to know that the court must make these calculations and will use the results in most cases. Parents may want to meet with a family law attorney to discuss the specifics of their situations and any concerns they might have regarding the application of the guidelines.


Jennifer L. Fuschetti, Associate
Christie, Kantor, Griffin & Smith, P.C.

Please note: All information is current only as of the date of publication and applies only in Virginia unless specifically stated otherwise. This article is not intended to convey legal advice. Please consult an attorney in the relevant jurisdiction for advice regarding your situation.