How deployment affects child custody and support
In our area, there are a lot of military families. In the Hampton Roads area alone, we have NAS Oceana, Little Creek Amphibious Base, Fort Eustis, Langley AFB, Fort Monroe, Fort Story, Dam Neck Naval Base, Naval Station Norfolk, and on and on. There are military families living on and off base all over the seven cities, and most of us, even the civilians, are hyperaware of our huge military presence. Many places in the area wrap yellow ribbons around their trees, fly American flags, and offer military discounts. We all support our troops in as many ways as we can, because our troops touch our lives on a daily basis. They are in the noisy jets that fly overhead, in the Humvees we see driving down the highway, and in the helicopters practicing terrifying drills over Willoughby Bay in Norfolk. Military service members and their spouses shop in our businesses, send their children to our schools, and provide valuable protection to our community and our country.
If you’re a female member of the service or a military spouse, thank you for your service! Thank you for being a valued member of our community, and contributing to our area in so many different ways. It’s great to have you here!
If you’re a female member of the service or a military spouse facing a divorce or custody case, you probably have a lot of questions. It’s true that military divorce and custody cases are, in a lot of ways, pretty different from civilian cases. It’s not just that you have different assets to divide, like military pensions, survivor benefit plans, and thrift savings plans, though those are all things that set military divorces apart. It’s a million different little things, like BAH, whether you’re a 20-20-20 spouse after divorce (which is the only way you could continue to receive military healthcare and other benefits post-divorce), and the possibility of future deployment.
Deployment is a biggie, especially if custody is an issue. Because there is such a dramatically high concentration of military families with permanent duty stations in Virginia, we have a number of laws that have been passed to help protect military service members from prejudicial treatment. Depending on whether you’re a service member yourself or a military spouse will probably have something to do with how you feel about these laws, but I want to be sure you know about them anyway so that you’re prepared before you meet with an attorney or show up in court.
Virginia Laws Protecting Military Service Members
In Virginia, there are two main laws we usually deal with when it comes to custody and divorce cases involving military service members, the Servicemembers Civil Relief Act and the Military Parents Equal Protection Act.
Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act is a federal law that protects military service members from having to deal with court cases at home while they are deployed abroad. Rather than having default judgments rendered against them in their absence, most cases filed against military service members are automatically “stayed” (which just means delayed) until the service member returns from his or her military service.
Military Parents Equal Protection Act
The Military Parents Equal Protection Act is a Virginia law that was enacted in 2008 and deals with custodial decisions when a military parent is deploying. As a result of this act, any custody order based wholly or partially on deployment of a military parent is automatically temporary. When the military parent comes back from deployment, custody automatically reverts to whatever order was entered previously.
Not only that, but the fact that a parent is in the military and may be subject to deployment is not an argument for changing custody or visitation to prejudice the parental rights of the military parent. Without an order in place, the courts will set a temporary hearing to put a custody and visitation arrangement in place and to ensure that the military parent’s relationship with the child is protected until after the deployment, when a permanent order will be established.
Custody and Deployment
So, what happens when a parent deploys? Well, obviously, if you’re deployed, you probably can’t still expect to take the child every other weekend or alternate holidays. Deployment always brings changes to the custody and visitation arrangement, and that should come as no surprise. Still, you’re probably wondering exactly what changes to expect.
If you’re the servicemember…
The best thing to do, if you’re anticipating a possible upcoming deployment, is establish a custody and visitation arrangement right away. It’s possible that you’ll be relocated again and again throughout your career, and it’s time to have a real discussion with your former spouse about what a realistic custody and visitation arrangement might look like.
If you let your non-military former spouse have custody of your child while you deploy, without establishing a custody and visitation arrangement before you go, and your former spouse lives in another state, it’s possible that the other state could then become the home state of your child. Virginia is particularly sympathetic to military service members, so you’ll probably want to keep your custody case here, if at all possible. Establishing a custody and visitation arrangement first will help ensure that you can use the protection provided by the Military Parents Equal Protection Act, so that, after you return, your custody and visitation arrangement will automatically revert to whatever it was before you left.
If you’re the spouse…
If you’re the spouse of a military service member who may deploy soon, you may not be in such a huge hurry to get a custody and visitation arrangement in place, particularly if you’d like to relocate. If your child’s father leaves for a deployment while you have custody, it may be your chance to relocate. During the time your child’s father is deployed, you can establish residency for the child in another state, enroll them in school, and get a job yourself.
This is usually an issue for women who moved to the Hampton Roads area because of their husband’s military service. They have no ties to the area, especially after the relationship ends, and most want to return to wherever they came from to be near other friends and family. Usually, this is difficult, if not impossible, especially while their husbands are still stationed here.
It’s a good idea to talk to an attorney about your options if you’ve planning on relocating. Keep in mind that the Servicemembers Civil Relief Act will prevent you from litigating anything new with respect to custody while your child’s father is gone (you can file something, but your case will have to wait until your child’s father returns from his deployment), and that because of the Virginia Military Parents Equal Protection Act, you won’t be able to use his military status and possible future deployments as an argument against him having custody.
If you’re both in the military and subject to deployment…
Obviously, if both you and your child’s father are in the military and subject to deployment, you’re going to have to consider third party custody designations. This is where remarriage and stepparents become an issue.
The military generally requires a Family Care Plan, but this document does not trump Virginia law. It doesn’t legally change custody; you’d have to go to court to do that. Additionally, executing a Power of Attorney isn’t enough to legally change custody. Again, you would have to go to court.
The best thing you can do is talk about custody with your child’s father before you deploy. Establish a custody and visitation arrangement, consider third party alternatives (like grandparents and stepparents), and execute a Family Care Plan together that reflects the legal reality of your decisions. If you can’t come to an agreement together, you’ll have to go to court and ask the judge to create a custody and visitation arrangement for you to follow.
Virginia Code Section 20-124.8 deals with delegating visitation due to deployment. When a military parent is deployed, they have the option of delegating their visitation to a family member while they’re gone. This is temporary order, so that means that, as soon as the military parent returns, the visitation schedule returns to normal. To do this, the deploying parent would have to make a motion to delegate visitation to a family member (including a stepparent) with whom the child has a “close and substantial relationship,” so long as the delegation of visitation is in the best interests of the child.
The court can choose to delegate all or some of the deploying parent’s visitation rights to the family member, or can just simply provide visitation rights to the family member (without specifically delegating only time that belonged to the deploying parent).
By doing this, the court doesn’t create a separate right to visitation for that family member, and the visitation can be rescinded, the same as it could be for anyone else, based on a showing of a material change in circumstances.
Changing Custody During Deployment
A case may be filed while you (or your child’s father) are deployed. Under the Servicemembers Civil Relief Act, though, as a deployed military service member, you qualify for a stay of the proceedings until you return. To use the SCRA to stay your proceedings, you should work with your local judge advocate general and commander. They’ll help you make sure your case waits until you return. IF the stay is granted, your child’s other parent won’t be able to move forward with their lawsuit until you get back.
If your child’s father is deployed and you’d like to change custody, you can file, but you’ll have to wait until he gets back before you can litigate your case.
It’s best to work out these issues ahead of time, if possible. Determine what kind of arrangement would work for custody and visitation, both when you’re at home and when there is a deployment. Try to include a provision in the original custody order that specifies what you’ve agreed to, and what happens when you deploy and return. Then, change your Family Care Plan to reflect your agreement or court order.
Housing Allowances During Deployment
A common question we get from military parents is whether they’ll have to provide their housing allowance as child support, or whether they’ll have to pay a set amount of child support. The answer is that it depends on your service branch.
Soliders have to provide an amount equal to BAH Type II at the “with-dependent rate” unless a court order or written agreement between the parties says something different. Exceptions can be made at the unit commander’s discretion.
Air Force regulations don’t set forth a specific amount; commanders set it based on the individual situation in the absence of a court order or written agreement.
Marines have to provide financial support to dependents based on a formula in the Corps’ Legal Administration Manual.
The Navy regulations say that a specific percentage of gross pay should be paid as support.
No matter what the military says, though, Virginia law trumps it. All the branches of service say different things about how (and how much) support should be paid, but, ultimately, child support is generally determined by the court. It can be determined at the juvenile court level on its own or as part of a custody and visitation case, it can be determined in the circuit court as part of a divorce hearing or an appeal from juvenile court, or it can be established by agreement of the parties. In Virginia, child support is based on a guideline figure. BAH would be taken into account as part of the income of the party receiving it, but what you’ll have to pay is one set figure.
For more information about custody and visitation cases where one parent is in the military and subject to deployment, give our office a call at (757) 425-5200.