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.