Do Custody Orders Change When a Parent is in the Military?

Entering the military may be an honorable mission, and one that should not be taken lightly. As a parent, entering the military also means wondering how and when you will see your child. When parents are not married, knowing what happens to children and how custody disputes are settled can be challenging.

Military families often cannot abide by the same expectations as those who are both living in the same community or even state. No matter if you are the custodial parent or if you are in the military and facing relocation, the attorneys at Randall, McClenney, Daniels & Dunn, PC, are the advocates you need on your side. Reach out to our child custody attorney in Virginia to discuss your rights.

Understanding Military Relocation and Child Custody in Virginia

Military relocation affects child custody disputes. Under Virginia Code § 20-124.2, custody decisions are governed by the best interest of the child. Military relocation does not automatically change custody orders. However, it can trigger legal review if conflicts with current court-ordered arrangements exist.

Why Relocation Triggers Custody Questions

Military relocation often leads to custody disputes and, as a result, modification requests. Custody and visitation orders are often based on geographic proximity and consistent schedules. When a military relocation occurs, that can disrupt parenting time, school stability, and the child’s routine. The courts reassess custody when existing arrangements no longer serve to meet the child’s best interest.

Key Legal Protections Under the Virginia Military Parents Equal Protection Act (MPEPA)

The Virginia Military Parents Equal Protection Act (Virginia Code §§ 20-124.7–20-124.10) provides military parents with protections. That includes that any custody or visitation modifications based solely on deployment must be temporary. This applies under § 20-124.8. In addition, the military servicemember has the right to request delegation of visitation to a family member or stepparent under this rule. This only applies in situations where that action is in the best interest of the child.

Note that courts may expedite hearings in cases involving deployment or military orders. These protections preserve parental rights while maintaining the best-interests standard.

Federal Laws Complementing State Protections

In addition to state laws, the Servicemembers Civil Relief Act (SCRA) applies to child custody and relocation cases involving active-duty service members. This provides protections such as:

• The right to request stays of proceedings
• Protections against default judgments
• Considerations for when a service member’s ability to participate in court is affected by their military duties

These protections are procedural in nature. They do not ultimately determine custody outcomes. That remains under the state’s rules on what is in the best interest of the child.

Family Care Plans vs. Virginia Custody Orders

A Family Care Plan is a military requirement. It is not automatically binding in Virginia for custody disputes. Rather, it is necessary to convert what is referred to as “care plan intent” into an enforceable court order. That could include temporary orders, delegated visitation, or contact schedules, for example.

Does Military Relocation Impact Child Custody in Virginia?

Military relocation can impact custody, but only through a court-approved modification process. As with most custody matters, any modifications occur when the parent can show material change in circumstances.

Military orders will often satisfy this requirement. However, that is not a guarantee for a permanent custody change.

Permanent Change of Station (PCS) and Child Custody

Permanent Change of Station (PCS) is a mandatory and long-term transfer for a military member to a new location. Most often, this change will last between 2 and 4 years. It involves the relocation of personnel and their household goods to a new location.

A PCS will likely lead to modifications to custody agreements since the parent has no choice but to move. PCS orders do not automatically override existing custody orders, though. The court must evaluate:

• Existing orders
• Stability of care for the child
• Continuity of care for the child
• Educational impact
• Ability to preserve the child’s relationship with both parents

Filing for Modification Due to Military Orders

Like any situation in which there are material changes to a parent’s circumstances, filing for modification to child custody and visitation requires petitioning the court for your specific needs. This means demonstrating a material change in circumstances, which is often possible with deployment orders or PCS.

How Deployments Differ from Permanent Relocations

Virginia child custody laws demonstrate a legal difference between a military deployment and permanent relocation. A deployment refers to a temporary change, one that is service-driven. A permanent relocation like PCS is considered a long-term geographic change. The law treats deployments differently to prevent the parent from being unfairly penalized for temporary military service obligations.

Temporary vs. Permanent Custody Changes

Custody changes related solely to deployment must be temporary under the law. They are automatically subject to review once the deployment ends. The court cannot issue a permanent custody or visitation order based only on the parent’s deployment or anticipated deployment as a result.

If there is a reason for permanent custody or visitation changes, the other parent must demonstrate that with evidence beyond military absence. That includes demonstrating that the lasting change will be in the child’s best interests.

Deployment-Specific Custody Rules

Virginia law contains specific statutory rules governing child custody and visitation when a parent is deployed for military service. These rules recognize the unique challenges military families face while also prioritizing the child’s need for stability. At the same time, they protect the deployed parent’s constitutional and parental rights.

Under the Virginia Military Parents Equal Protection Act, courts may enter temporary custody or visitation orders when deployment materially affects a parent’s ability to exercise parenting time. These rules apply whether the deployment is domestic or overseas. Deployment alone cannot be used to justify a permanent change to custody or visitation.

Delegating Visitation During Absence

When a military parent is deployed, Virginia law allows that parent to request delegation of visitation to a family member or stepparent. This option exists to maintain continuity for the child during the parent’s absence.

Delegation is permitted only when it serves the best interests of the child and when the individual receiving visitation has a close and substantial relationship with the child. Importantly, delegation does not transfer custody and does not reduce or eliminate the deployed parent’s legal rights. Custody remains with the legal parents at all times.

What the Temporary Order Must Cover

Temporary custody or visitation orders issued due to deployment must address practical parenting concerns, including:

• The non-deploying parent’s obligation to reasonably accommodate military leave
• Opportunities for communication between the deployed parent and the child
• The deploying parent’s duty to provide timely notice of leave schedules, when feasible

These provisions help preserve the parent-child relationship despite the logistical challenges of military service.

Post-Deployment Restoration of Orders

Once deployment ends, Virginia law requires courts to restore the pre-deployment custody and visitation order unless doing so would no longer serve the child’s best interests. Virginia Code § 20-124.8(C) directs courts to reinstate prior arrangements promptly upon the service member’s return.

The deployed parent is not required to re-prove parental fitness simply because they were absent due to military service. The law presumes restoration unless evidence unrelated to deployment supports a different outcome.

30-Day Priority Review and Burden Shifts

If a deployed parent files a motion after returning from service, the court must schedule a hearing within 30 days, and the matter takes priority on the court’s docket.

At that hearing, the non-deploying parent bears the burden of proving that restoring the pre-deployment order would no longer be in the child’s best interests. This safeguard prevents military service from becoming a disadvantage in custody proceedings.

Avoiding Permanent Loss of Parental Rights

Virginia law expressly protects military parents from permanently losing custody or visitation due solely to deployment. Courts may not treat military service as abandonment or voluntary relinquishment of parental responsibilities.

Under Virginia Code §§ 20-124.7 and 20-124.8, permanent custody changes require independent, non-military evidence demonstrating that the change is in the child’s best interests. Timely legal action and clear court orders are critical to preserving parental rights during and after military service.

Steps to Modify a Custody Order After Military Relocation

A parent seeking to modify custody after military relocation must file a motion to modify in the appropriate Virginia court. The relocating parent must show a material change in circumstances affecting the child. Under Virginia Code § 20-124.2, any modification must serve the child’s best interests.

Relocation alone does not guarantee modification. Court approval is generally required before deviating from an existing custody or visitation order, and advance notice to the other parent is typically required.

Negotiating Agreements With Co-Parents

In some cases, parents may resolve relocation-related custody issues through negotiation rather than litigation. Written parenting agreements often address long-distance visitation, transportation costs, holiday schedules, and virtual parenting time.

Any agreement must be submitted to the court for approval to become enforceable and must comply with Virginia’s best-interests standard.

Court Process for Contested Military Relocations

When parents cannot agree, the court process includes filing pleadings, presenting evidence, and attending hearings. Courts evaluate whether the relocation constitutes a material change in circumstances and whether the proposed custody arrangement serves the child’s best interests.

Military orders are considered, but they do not automatically control the outcome of the case.

Relocation Notice Requirements and Consequences of Failing to Provide Notice

Virginia custody and visitation orders often require 30 days’ advance written notice to the court and the other parent before relocation or address changes, unless good cause exists.

Providing notice does not automatically grant permission to relocate. Court approval may still be required if the move disrupts the existing parenting schedule.

Factors Courts Consider in Military Relocation Cases

Virginia courts apply the statutory best-interests factors under Virginia Code § 20-124.3. These include the child’s age and needs, stability, existing relationships, educational considerations, and each parent’s role in caregiving.

Military service is one factor among many and cannot be weighed unfairly against a parent.

UCCJEA Jurisdiction for Multi-State Military Moves

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdiction when a child or parent relocates out of state. Under Virginia Code §§ 20-146.1 through 20-146.38, courts consider the child’s “home state” and whether Virginia retains continuing exclusive jurisdiction.

Military relocation alone does not automatically transfer jurisdiction to another state.

Why Clients Choose Randall, McClenney, Daniels & Dunn, PC

Military custody and relocation matters require careful legal analysis, clear court filings, and an understanding of how military obligations intersect with Virginia family law. Randall, McClenney, Daniels & Dunn, PC represents parents facing complex custody and visitation issues, including those involving deployment, relocation, and long-distance parenting arrangements.

The firm’s attorneys regularly handle cases involving custody modification, parental rights, and military-related family law concerns. Their approach emphasizes preparation, clear communication, and practical solutions designed to protect parental rights while keeping the child’s best interests at the forefront.

Testimonials

“I’m very grateful for Mr. Ellsworth helping me in my custody case and helping me achieve 50/50 custody of my children and did not settle for anything less than we spoke about. He was very supportive, kind hearted, well dressed and I couldn’t have done it without him.” – Abraham T.

“Without going into detail — I was experiencing a difficult family matter which required legal assistance. To that end — Randall, McClenney, Daniels & Dunn, P.C. served me quite well as the issue was resolved in an acceptable manner by Attorney Christopher Dunn. I will also say that Attorney Dunn was extremely helpful with the matter even though it took a little over a year to resolve. That being said — I highly recommend the services of Randall, McClenney, Daniels & Dunn, P.C.” – Rynard M.

Frequently Asked Questions

What If Both Parents Are Military (or Both Deployed)?

When both parents are service members or subject to deployment, courts may consider third-party caretaking options to ensure continuity of care. These arrangements may involve relatives or other trusted caregivers.

What Does “Best Interest of the Child” Mean?

Under Virginia Code § 20-124.3, courts consider multiple statutory factors when determining a child’s best interests. These include the child’s age and needs, the role each parent has played in caregiving, the child’s existing relationships, stability, educational considerations, and each parent’s willingness to support the child’s relationship with the other parent.

Worried About Custody During Your Deployment?

If you are facing deployment, relocation, or a change in your custody or visitation schedule, speaking with a Virginia family law attorney can help you understand how the law applies to your situation. Contact Randall, McClenney, Daniels & Dunn, PC by calling (757) 742-6115 or filling out the online contact form to discuss your rights and options under Virginia child custody law.