Are Virginia Courts Biased Against Military in Custody Cases?

Posted on Mar 28, 2013 by Katie Carter

I think it’s pretty safe to say that Virginia is NOT biased against military when it comes to custody. That does not mean, however, that a Virginia court would find that a deployable military service member is the most appropriate person to have primary physical custody.

In Virginia, what the court is looking at is when making a custody determination are the best interests of the child factors. You can check them out by clicking here. These factors are the same for children born to military or civilian parents. It makes no difference, because the court isn’t looking at what’s best for the parents. The court is looking at what is best for the children, and that’s a more objective standard.

If your child’s father is in the military, you’re at an advantage when it comes to custody because your job probably affords you much more flexibility. Flexibility means that you have the ability to be present for the child, even when your child’s father isn’t available. You have a pretty good argument for primary physical custody, especially if he’s deployable. That doesn’t mean, of course, that he won’t have visitation with the child, potentially even while he’s deployed. One of the things we’re seeing relatively often with military families these days is Skype visitation. There’s no reason that the child should have to stop having face-to-face time with dad, no matter where in the world he may be at a given time. If he has any time off in the middle of his deployment, you may be ordered to allow the child to spend all (or a large portion) of that time with him.

That being said, there is no guarantee that the court will find that you are the best primary physical custodian for the child. The court will do a “best interests of the child” analysis, and it is possible that the court could find that dad having primary physical custody is in the child’s best interests, for whatever reason. Even if, for whatever reason, you don’t win primary physical custody, you have a good argument that you should be included on the child’s family care plan when dad deploys. If a military person has primary physical custody of a child, they are required to have a family care plan in order to deploy. If your child’s father deploys but has primary physical custody, you should work it out so that you are the alternate caregiver in the event that he must deploy.

Your civilian status isn’t inherently superior to that or a military service member’s status (in fact, I would say that in this area we are proud of our military background), but it does give you additional flexibility where child custody is concerned. Don’t forget that this is one of your strongest arguments in support of an award of primary physical custody.