In our area, dealing with the military is, for better or for worse, just a part of daily life. We’re pretty attuned to the specific issues that the military faces, and, for many of us, whether we’re current or former military service members or spouses, there are a lot of family law issues that are involved as well.
When it comes to custody and visitation, deployment is a big issue. Specifically, what happens to the kids while one parent is deployed? Sure, the military harps on and on about family care plans – but none of that trumps the custody and visitation orders entered by the courts in the Commonwealth. THOSE are the orders that parents have to follow. But, still, what, exactly, happens, when one parent is deployed and can’t exercise his visitation?
Well, one thing that CAN happen is that his visitation (let’s assume it’s a him, though, of course, I know that it could also happen in the situation where the mother is on active duty and is deploying) could be delegated to someone else, including to a stepparent.
Wait, what? His new wife could get unsupervised visitation time with MY child?
Yes, the statute specifically allows this! If you haven’t read it, click here. It’s Virginia Code § 20-124.8, and it says that a deploying parent can make a motion to delegate all or some of his visitation to someone else. Usually, we see a new stepparent, or a grandparent.
The theory here, of course, is that the relationship that the child develops with these other people are important, and need to be reinforced. And just because dad (again, just assuming dad, though it’s not always dad) is gone doesn’t mean that no one who is connected with him should have time with the child. In fact, the court views these other relationships as really important, especially if the new marriage has been of a reasonable duration (even a couple of years), and if there are other half siblings involved.
But let’s break it down in a little more detail. It’s not that visitation is AUTOMATICALLY delegated to a new stepparent or a grandparent, just because they happen to be a stepparent or a grandparent. There are criteria that must be met. The statute provides, in pertinent part, “[t]he court, on motion of the deploying parent or guardian to delegate visitation to a family member, including a stepparent, with whom the child has a close and substantial relationship and upon finding that such delegation is in the best interests of the child, may enter an order delegating visitation” – if you notice, there are TWO criteria there. First, that the stepparent, or person to whom visitation is delegated, must have a “close and substantial” relationship with the child, and, second, that it must be in the best interests of the child to do so.
“Close and substantial” relationship
So, what exactly is a close and substantial relationship? The statute doesn’t say. But I think it’s safe to say that the person should have been around for a period of time, and have had the opportunity to really develop a relationship with the child.
The child should like, trust, and feel comfortable around that person. It’s not an automatic delegation to any stepparent, it’s something that results from an authentic and organic relationship that has developed between a child and his or her new stepparent.
Best interests of the child
Best interests of the child is a little easier to discuss, because the statute specifically sets forth standards for what this involves.
There are ten factors that determine the best interests of the child, according to Virginia Code §20-124.3:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
What if we disagree about whether a “close and substantial” relationship exists, or whether delegation of visitation is in the child’s best interests?
You may need a judge to decide. And, if a judge is involved, there may very well also be a Guardian ad litem appointed. A Guardian ad litem (or GAL, as we sometimes call them) is an attorney appointed to represent the child’s interests to the court.
The GAL can speak with the child, and with both parents, and ultimately make a recommendation to the court. It’s one of the only ways we have of assessing the child and making a determination of what might be in the child’s best interests. (We don’t very often bring children to court. It’s too damaging.) It’s not a perfect system, of course, and there are plenty of people who argue that GALs get it wrong… But, if you bring these issues before the court, this is one of the only ways the court has of actually adjudicating these issues.
Will visitation be delegated during deployment for sure?
Well, no. It’s not automatic. Like I said, it depends on the relationship of the child with the stepparent or other adult to whom visitation is delegated, and also whether or not such delegation is in the child’s best interests.
Though it may seem that the system is skewed towards the military servicemember, this is not a standard that is designed to give them a leg up on the system. It’s just a way of helping to allow for a framework for military parents to keep things going – on at least a superficial level – while they’re gone.
For more information, or to talk to someone about delegation of visitation during your (or your child’s father’s) upcoming deployment, give our office a call at 757-425-5200.