The Magna Carta gave our founding fathers the phrase, “law of the land.” Virginia’s own James Madison apparently added the U.S. Constitution’s Article 6 flourish, “supreme law of the land.” That Supremacy Clause sets the hierarchy for all legal issues, including Virginia Circuit Court child custody orders and military Family Care Plans (FCPs).

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Supremacy Rules

The U.S. Constitution stands supreme over Virginia’s Constitution, which is superior to laws promulgated in the Code of Virginia, and the Code eclipses local statutes. This has been your short course in supremacy. Our country’s and Commonwealth’s laws, codes, and regulations are tiered in a logical structure.

Military law operates in a parallel path to local, state, and federal laws. When the two spheres overlap, local authorities and military judges seek a balance, deferring in most cases to civilian law. In military issues involving Family Care Plans, civilian laws clearly outrank military guidelines.

What is a Family Care Plan?

A Family Care Plan (FCP) is a written document required in every branch of service. All military members whose service takes them away from their families must produce written, detailed plans expressing their wishes, designating guardians, and offering details regarding the care of their family members.

The FCP is written by the service member and turned into a superior officer, for safekeeping should the need arise. It is a kind of social and emotional insurance, a way to make certain service members have given some thought to protecting their families before deployment.

Who Needs a Family Care Plan?

Some military personnel think an FCP is only required for divorced parents. Divorced or divorcing service members do need them, but so do:

  • Single parents — A single parent with a child under 19, or a single parent sharing child custody with someone they are not married to
  • Dual military families — Both parents with custody of children under 19 are service members
  • Legal caretakers — A service member is the sole caretaker for a child under 19 or an adult family member needing care
  • Pregnant military members — A pregnant service member who is divorced, widowed, separated, or residing without a spouse
  • Military members with visitation rights — A service member who has visitation rights that allow family members to be solely in their care for more than 30 days in a row
  • Spouses unable to care for themselves — Service members whose spouses are unable to care for themselves or who are physically, mentally, or emotionally disabled

What Should Be Included in a Family Care Plan?

Any Virginia man dealing with the intricacies of a property settlement agreement will also recognize the level of detail required in an FCP.

A well-written Family Care Plan should include:

  • All contact information of the preferred temporary caretakers who will substitute for the absent military member during the member’s absence
  • Detailed contact information and explicit wishes regarding permanent custody for the child in the event of the military member’s death
  • Instructions on moving the child from short-term caregiving to the permanent caregiver as necessary
  • Financial information — and financial power of attorney — to ensure adequate funds for those in care
  • Contact information for all persons important to the lives of those in care, including religious leaders, school personnel, friends, relatives, neighbors, play date partners, daycare workers, and anyone else considered part of the child’s day-to-day life
  • Medical data — Names and contacts for all doctors, healthcare providers, and dentists; thorough documentation of immunizations, prescriptions, allergies, chronic conditions, and supplements (vitamins and the like)
  • Paperwork — Identify locations and access methods for all pertinent papers relating to family life, the lives of those in care, and the military member (things like birth certificates, a living will, a healthcare directive, insurance policies, identification cards, passports, commissary cards, and so on)
  • Instructions for access to military facilities — Provide ample, detailed plans for access to military facilities those in care may use, including methods of identification, hours of operation, payment methods, and similar details; remember the caretaker of your children may have no knowledge of the commissary or other accessible facilities

Can a Family Care Plan Replace a Court Order?

An FCP is not a legal document. Given the Supremacy Clause and its resulting hierarchy, nobody can be surprised that the legal document of a child custody order outranks the aspirational details of an FCP.

While a divorced military member’s commanding officer may be gratified to know how well the member planned for an overseas deployment, the FCP withers in the face of the court’s custody order.

Ideally, the two documents should agree in all details. The FCP is best crafted after the final divorce decree precisely so the FCP matches the language and details of the orders for child custody, child support, and visitation.

This also means the child custody agreement between two divorcing parents should include plans for deployment. While the other parent may take full custody of the children during the service member’s deployment, that is not automatic.

Say you, the service member, would like your visitation schedule to go to your parents. Rather than have the children in sole custody, your ex-spouse keeps the existing visitation schedule but takes your kids to see their Nana and Papa when it would have been your turn.

A military service member should always update the FCP, replacing earlier versions with accurate, contemporary versions. After divorce and as children grow, custody may change. Revisiting the FCP at least annually is a wise move.

Conflicts with the FCP and Child Custody Orders

In the event an FCP conflicts with child custody orders, the legal document takes precedence. The FCP cannot change parental rights, reduce parenting time, alter child support arrangements, or name someone to be a child’s guardian in opposition to the guardian named in the legal document.

The worst scenario would be a service member deployed overseas who learns that an unwarranted conflict has developed based on the FCP and the standing child custody orders. In that event, the service member may feel helpless.

But local laws, Virginia law and federal laws all protect the service member. Your superior officer will not attempt to use the FCP to overrule existing child custody orders. Any opposition to existing child custody arrangements will come from a so-called “interested party,” such as your ex-spouse, in-laws, or your own relatives.

One way to prevent that challenge would be to review the FCP and the custody orders with those interested parties, so they know your wishes before you deploy.

Still, that does not prevent someone from trying to change your child custody and visitation arrangements while you are not physically present in Virginia.

While alarming, such a challenge can be quickly ironed out in Virginia’s courts through the help of an experienced family law attorney. By choosing a lawyer familiar with the military, that overseas service member can communicate with the attorney, trust the process, and sleep well knowing the kids will be where they should be.

The Firm For Men has vast experience in dealing with family law and military divorce and custody. Contact us today at our Virginia Beach office or telephone us at (757) 383-9184 to schedule an initial consultation. We can help remove some of the anxiety, solve the child custody conflict, and put the FCP in its place, at a rank far below your legal divorce decree.