A Virginia parent who is an active member of the U.S. Armed Forces, and who is divorced or separated from or does not live with the other parent or who is in the middle of divorce proceedings, faces real concerns about their minor children during deployment. They may fear losing custodial or visitation rights in their absence.
Both the federal Servicemembers Civil Relief Act (SCRA) and the Virginia Military Parents Equal Protection Act are laws that provide military parents some legal protections of their parental rights during deployment.
The SCRA when the deployed parent has notice of a custody proceeding
When a service member has notice of a civil action involving them, including child custody proceedings, and their military obligations – like deployment – prevent them from appearing in court, the SCRA allows them to ask the court to stay (delay) the matter for at least 90 days. The service member may request a stay any time throughout the proceeding until final judgment. If the servicemember includes required letters from themselves and their commanding officer, the judge “shall” stay the action.
The judge also has the discretion to stay the matter on their own.
In certain circumstances, the military parent may request an extension of the stay. If the court refuses to allow it, it must appoint a lawyer to represent the person’s interests in the proceeding.
The SCRA when the deployed parent fails to appear at the custody proceeding
If the nonmilitary parent files a custody petition and the military parent does not appear in response (presuming they may not have had notice), before the court can enter judgment in favor of the parent who filed the proceeding, that parent must tell the court whether the other parent is in the military (unless they do not know).
If it appears that the absent parent is in the military, the court must appoint a lawyer for that parent before entering judgment. If the attorney cannot connect with the client, the lawyer’s positions and actions in the proceeding cannot waive defenses or bind the absent parent.
Because of the military service, if the service member’s counsel or the court requests a stay, the judge “shall” stay the matter for at least 90 days if any of these are true:
- If the absent parent has a defense that they must be present in court to argue
- If the lawyer cannot contact the parent
- If the attorney cannot discern a meritorious position for the client.
If a default judgment (judgment in favor of the petitioning parent in the absence of the responding parent) is entered that “materially affects” the absent military parent and they have a “meritorious or legal defense,” that parent can ask the court to reopen the matter and the court must do so.
For example, if the court reduced custody rights of the absent parent based on untrue allegations by the nonmilitary parent, the military parent has the right to ask the court to reopen the custody proceeding so they can present evidence against the falsehoods.
SCRA and custody
When a military parent is deployed in an assignment that does not allow their family to join them, the SCRA provides:
- A temporary court order modifying custody while the military parent is deployed may only last as long as the deployment period justifies.
- Current deployment or the possibility of future deployment may not be the only reason for a court to decide it would be in the best interest of a minor child to permanently modify custody arrangements.
- If a state law concerning a temporary custody order during deployment “provides a higher standard of protection to the rights of the [deploying] parent” than that of the SCRA, the “higher state standard” applies.
More to come
In an upcoming post, we will talk about the custody and visitation protections provided to a deployed parent under Virginia state law.