I’m in the Military … Does that Mean My Child’s Mother Will Get Custody?

  • will my child's mother get custody because I'm military?

I’m in the Military … Does that Mean My Child’s Mother Will Get Custody?

“The temperature typically varies from -19°F to 46°F.” If that sounds like your idea of a great place to live, and you are in the armed forces, request a transfer to Thule Air Base in Greenland. We have spoken of Thule Air Base before, the coldest U.S. base. Our country’s northernmost outpost (only 950 miles from the North Pole) was recently in the news again for becoming more energy efficient. We only mention Thule because, if you serve in the Air Force or Army, you could be stationed there. If you are divorced and have custody of your children, Thule is not likely the sort of place you’d want to bring the kids.

What are the Best Interests of the Children?

While everyone respects a man in uniform, Virginia law respects a child even more. Built into Virginia Code is the oft-repeated phrase, “best interests of the child,” meaning custody and visitation should be awarded, always, in the best interests of the emotional, physical and intellectual development of your kids. Which parent is more likely to provide a supportive, age-appropriate environment for the children?

The Virginia Circuit Court judge overseeing your divorce case and eventually decreeing as to custody will weigh many factors, but your military service, legally and specifically, cannot be one of them.

However.

However, one line of the code does allow the court to consider “such other factors as the court deems necessary and proper to the determination.”

Your ex-wife’s attorney may ask that your military service be considered as a factor in deciding to award your wife custody of your kids. Her side may paint you as unable to provide a stable (and warm) home while you are, for example, assigned to Thule.

This is easily answered by placing a specific clause in your property settlement agreement in which the court awards you custody of your children but designates your wife as temporary custodian of the children during your deployment, as described by the American Academy of Matrimonial Lawyers.

Military Service and Child Custody

Though many Virginians think the opposite is true, and perhaps rightfully so, Virginia law does not automatically defer to women over men for child custody. As a Virginia man, you are as worthy of getting custody of your children as your ex-wife is, as detailed in Code of Virginia § 20-124.2(B):

“As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship …”

Service members do have a challenge most other working Virginians do not have: involuntary transfer on short notice to some far-flung spot on the globe. A Virginia military man would naturally worry about his chances of getting or retaining custody, since the Circuit Court judge may not view breezy Thule, for instance, as a great child-rearing spot. Then there is the whole visitation thing, involving a 15-hour flight down to meet your ex-wife for her weekend with your kids …

Military men of Virginia, fear not! The Virginia General Assembly has your six.

Virginia Military Parents Equal Protection Act

Virginia’s lawmakers have a special reverence for Virginia’s military, and so they established the Virginia Military Parents Equal Protection Act (the Act).

The Act includes a special provision for transferring visitation rights of your children to a delegate of your choosing, such as a parent, stepparent, brother, or other family member who has a strong bond with your kids. That designee can maintain your connection to your kids by spending “parenting time” with them on your behalf, helping them connect to you using technology, and keeping their memories of you sharp.

But what about custody, you ask? Because of your deployment, the court may order that temporary custody be transferred to your wife, but the Act:

“Provides visitation rights to such family member, if the deploying parent or guardian had physical custody of the child prior to the deployment and the nondeploying parent or guardian, or a family member of the nondeploying parent or guardian, is awarded physical custody during the deployment.”

It says right in the Act that

“Any court order limiting previously ordered custodial or visitation rights of a deploying parent or guardian due to the parent’s or guardian’s deployment shall specify the deployment as the basis for the order and shall be entered by the court as a temporary order.”

The Servicemembers Civil Relief Act SCRA

The other safeguard you, as a military man, enjoy is the Servicemembers Civil Relief Act (SCRA), which prevents your wife from filing petitions against you during your deployment regarding:

  • Custody
  • Visitation
  • Spousal or child support

You have a legal right to postpone those petitions throughout your deployment and for 90 days after, giving you time to meet with a Virginia attorney and build a defense against her petition.

Military Divorce Lawyers for Men Only

No matter where you are stationed, you can reach The Firm For Men at 757-383-9184, or you can contact us online. As a veteran-owned firm serving a large percentage of the area’s military men, we hold a special place in our hearts (and in our law practice) for the valiant men of our nation’s military. Please allow us the honor of answering your questions about child custody and more.

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