I’m Deploying! How are My Custodial and Visitation Rights Affected?

The Commonwealth of Virginia has the second largest military population in the United States.  In 2008, the legislature enacted the Virginia Military Parents Equal Protection Act, which addresses the concerns of deploying parents regarding custodial and visitation decisions. The Virginia Military Parents Equal Protection Act defines who is considered to be a deploying parent, including not only active duty but activated reserve units, and grants special rights to active duty service members with respect to custody and visitation. The Act defines a deploying parent as “a parent of a child under the age of 18 whose parental rights have not been terminated by a court of competent jurisdiction or a guardian of a child under the age of 18 who is deployed or who has received written orders to deploy with the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof.” Military personnel are relocated and deployed throughout their career.  In many cases, military personnel, both enlisted and officers, are unable to actively parent their children because they are deployed in the service of our country. When this happens, custody orders and/or visitation plans may be thrown into turmoil.  The Virginia Military Parents Equal Protection Act provides legal protection to members of the military in child custody and visitation issues.  Simply put, you can’t use the fact that a parent is in the military and subject to deployment as an argument for changing the child custody and/or visitation order.

The Act allows any deploying parent to:

  • Temporarily modify the current custody and/or visitation order to ensure that the service member’s deployment status is clearly stated as the reason for a change in the order and to ensure that the matter is re-heard within 30 days of the service member’s return from deployment
  • Designate his or her physical visitation time in the existing order to a family member with whom the child has a close relationship, including the spouse (stepparent) of the deploying parent, aunts, uncles, grandparents, etc. The delegation of these rights is temporary and do not create a separate visitation right for the relative.
  • Order the non-deploying parent to facilitate phone calls, Skype, and email between the child or children and the deployed parent. The court will also require the deploying parent to provide reasonable notice to the other parent about his or her leave schedule and require the non-deploying parent to reasonably accommodate that leave during deployment.
  • Grants the deploying parent the right to file a petition with the court which specifically identifies the service member as a parent about to deploy and requires the court to place the deploying service member’s petitions before other matters on the court’s docket.
  • Allows the court to accommodate any deploying parent who is unable to appear in person due to pre-deployment training or actual deployment by allowing that parent to testify by telephone or Skype.
All orders of the court based upon a deployment are temporary and modifiable upon the service member’s return.  When the deploying parent returns, the court will give that parent priority on its docket to modify the custody or visitation arrangement again. If the non-deploying parent does not want the order that existed before the deployment to be reinstated, it will be his or her burden to show that the prior arrangement is no longer in the child’s best interests.

If you are a deploying service member:

If you’re anticipating a possible upcoming deployment, the most important thing you can do is establish a custody and visitation arrangement immediately. It is probable that you’ll be relocated again and again throughout your career.  Consult a Virginia family law attorney, experienced in military deployments, about a custody and visitation arrangement. If you let your non-military former spouse have custody of your child while you deploy, without establishing a custody and visitation schedule before you go, your former spouse could move to another state and establish residency there for your child.  That state would then have jurisdiction over custody and visitation. Virginia is particularly sympathetic to military service members, so you’ll want to keep your custody case here, if at all possible. Establishing a custody and visitation arrangement will help ensure that you can use the protection provided by the Military Parents Equal Protection Act. After you return, your custody and visitation arrangement will automatically revert to whatever it was before you left.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about military deployment, custody, and visitation, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Estate Planning Before Military Deployment

An estate plan has several objectives.  It should provide for your family’s financial security, ensure that your property is passed to your beneficiaries as you wish, and determine who will manage your assets and make sure that your estate is distributed properly after your death.  Military families need to consider some special estate planning issues that others, outside of the military, do not, especially if family members are deployed overseas.  Members of the military also have access to special benefits that may complicate their estate.  For this reason, it’s important to consult a knowledgeable estate planning attorney with expertise working with military families in Virginia.

Estate planning documents

Members of the military often move frequently, are deployed overseas to different countries, and have access to government benefits both during and after service.  They may also be subject to unexpected tax rules and issues.  Estate planning for military members and their families may be more complicated than for their civilian counterparts.  An experienced military estate planning attorney can help you with the following:
  • Wills and trusts
  • Guardianship for minor children or children with special needs
  • Financial powers of attorney
  • Advance medical directives (living wills)
  • Funeral and burial arrangements
  • Organ donation
  • Life insurance
  • Survivor benefits
  • Estate taxes
  • Family care plans
  • Beneficiary designations
  • Estate administration and/or probate

Some factors to consider

Everyone’s estate plan should be customized to that person’s specific circumstances.  Below are factors that should be considered by your estate planning attorney:
  • Are you married?
  • Do you have minor children?
  • Do you have children with special needs?
  • Do you own property? Where is it located? Is it in more than one state or country?
  • Do you have an IRA, 401k, or other retirement or pension accounts?
  • Do you have life insurance? What types?
  • What other military benefits do you have or have taken advantage of?
Though the military offers estate planning services to its members, they are often incomplete and do not necessarily include the legal requirements of the Commonwealth of Virginia.  As in most states, Virginia has some unique and specific requirements for estate planning that need to be taken into consideration.  Even if you have used the JAG Corp or your estate plan was created by an attorney in another state, it’s a good idea to have a Virginia estate planning attorney review the documents and make sure that all your needs and Virginia requirements are met.  At a minimum, your Virginia estate planning attorney should make sure the following are completed before you deploy:
  • Get your legal documents, detailed above, in order.
  • Sign up for life insurance.
  • Update all beneficiary designations.
  • Make survivor decisions on your military pension.
  • Find out about other benefits for survivors.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about military estate planning, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com

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