My Significant Other is in the Military, and we’re currently undergoing a divorce. What do we do about child custody?

Fear not! Since Virginia is home to a significant population of America’s servicemembers, this is a common question we get – but it is rather simple to handle! 


Expectations of Military Service

The military service of a parent frequently impacts custody and visitation rulings. When one party to a custody dispute is an active duty servicemember, the lawyers must consider the requirements and expectations of military service when proposing custody arrangements. 


SCRA Benefits and Court Proceedings

Under the Servicemembers Civil Relief Act, active duty servicemembers have an immense range of benefits ranging from: credit cards (fees and payments), auto and home loans, mortgage payments, cell phone bills, interest rates, education and work leave, etc.! But one of the most important benefits to consider is that court proceedings must be delayed if a servicemember is on active duty and unable to attend court proceedings (SCRA: 50 U.S.C. §3901 et seq). 

If a servicemember were to request a stay of child custody proceedings under the SCRA, the movant must provide a letter or communication in the application for stay that: (1). States the current military service impacts the servicemember’s ability to appear; and (2) states a date upon which the servicemember will be available to appear. 

Additionally, the servicemember must also provide a letter or other communication from their commanding officer stating that their military duties prevent the servicemember’s appearance and leave is not authorized at the time of the letter. 

There is a lot of fraud out there, and some servicemembers unfortunately take advantage of SCRA benefits and try to “game the system” through fake letters. Note that denial of a stay has been determined to be reversible error in custody cases and therefore the lawyer should obtain all relevant facts and carefully work through the SCRA stay issue. 


The Uniform Deployed Parents Custody and Visitation Act (UDPCVA)

In 2012, the UDPCVA was passed in 14 states to include: Florida, West Virginia, Utah, Iowa, South Carolina, Nebraska, Arkansas, Minnesota, North Dakota, South Dakota, Tennessee, Nevada, Colorado and North Carolina (see Uniform Law Commission: Additionally, a majority of states have enacted similar legislation supporting or addressing the custodial rights of military parents. 

The chief remedy provided by the UDPCVA is the delegation of visitation rights by the servicemember. The court may grant substitute visitation under the UDPCVA, essentially allowing a non-parent to step into the deployed servicemember’s place. A judge has the authority to delegate decision-making authority as well. 

This is an incredibly powerful tool to utilize, but the court stipulates that the grant of authority requires that: the individual to whom delegated rights are granted must have a close and substantial relationship with the child. 


With servicemembers constantly moving bases around the world, where is their “legal” state of residence?

This may seem tricky at first, but it actually isn’t! If a servicemember is stationed in Washington state for example, they may not be a Washington resident! In fact, it’s very common to see people with California Driver’s Licenses with their home address being in Pennsylvania or even Tokyo, Japan! Where someone gets their mail, or is living/ stationed currently, doesn’t mean that they are legally a resident of that state. Check their driver’s license and/or vehicle records to see where their car is registered or what state they are a citizen of. 

If custody negotiations go south, a servicemember or other parent may take advantage of a ‘jurisdictional quandary’ such as this which is why you need an experienced lawyer to hammer down the nonsense. While jurisdiction cannot be transferred by consent (see Strommen v. Strommen, 927 So. 2d 176 [Fla. Dist. Ct. App. 2006]), a court order can go a long way towards preventing a multi-state or interstate custody battle. But if there are two states involved, don’t worry –that may just lead to diversity jurisdiction or a filing in federal court.


Military Families Traveling Long Distances for Court Proceedings

When service members are stationed thousands of miles away from court proceedings, it can make things difficult, and costly. That is why attorneys involved in a military custody case must address the challenges of planning and paying for long-distance custodial situations. But military assignments can constantly change and it is very common for a servicemember and the other parent to be separated by thousands of miles. 

Lawyers should always advise their client to include an order that takes military duties, distance, travel limitations or availability, and any related factors into account. A good remedy is to include two custodial schedules in any order: one schedule that applies if the parties reside within a short radius, say 50 miles; and a second schedule that applies if the parties live outside of the short radius. If the servicemember is anticipating living far away from their co-parent – such as an international permanent change of station (PCS) – the practitioner may want to include a third custody schedule that takes the extended travel time and expenses into account.

Second, address transportation costs, fees, and realities in the agreement, consent order, or in evidence and argument to the court. Who will transport the child to the airport, train station, etc.? What notice is required before arranging a flight? What factors should be considered in selecting a flight? Can the child fly alone? What costs are associated with travel? Are there fees for additional services, such as “flight buddies,” or additional tickets needed for a parent to travel with the child(ren)? These issues – and any other issue applicable to the facts in your case – should be included in any order or agreement. 

As a practical tip, this factual research can be quite costly if done at an attorney’s or paralegal’s hourly rate. If possible, delegate the task of investigating options for travel, the associated cost, the anticipated travel time, and so forth to the client. 




Special Thanks to Law Clerk William Taylor Gleason for his assistance with this article.

H. Van Smith
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Trusted Virginia Attorney Serving Richmond to Williamsburg