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We return to the topic of protections for parental custody and visitation rights of Virginians in the military by exploring Virginia law on the subject. We recently posted a blog with detailed information about the federal Servicemembers Civil Relief Act (SCRA), which secures vital legal protections for these parents upon military deployment.

As promised, today we share information about the Virginia Military Parents Equal Protection Act, which provides additional protections. The SCRA says that when state law gives a “higher standard of protection” concerning temporary custody orders during deployment than that of the SCRA, the state standard controls.

To review, some of the main SCRA provisions provide:

  • A service member with notice of court proceedings about custody or visitation who cannot attend because of military responsibilities may ask the court for a stay (court order temporarily stopping proceedings).
  • If the military parent is absent from court when the other parent files a custody petition, the nonmilitary parent must tell the judge before judgment in their favor that the parent is in the military (if they know). The judge must appoint legal counsel for the missing military parent and the lawyer can request a stay in certain situations.
  • If the court entered a default custody order that materially impacts the absent parent, that parent could request that the court reopen the matter so they can present legal defenses and the court must grant the request.
  • When a service-member parent faces deployment and the family cannot join them, the SCRA restricts certain state court custody orders.

What does the Virginia law say?

The main features of the Military Protections Equal Protection Act (the Act) that give more rights to deploying parents are:

  • If a court reduces custody or visitation rights of a military parent because of deployment, the judge must state in the order that deployment is the reason and the order must be temporary. The order also must require the nonmilitary parent to tell the court in advance of address and phone number changes.
  • Procedures and rules are set out when the deploying parent can give visitation rights to a relative, including a stepparent, if the family member has a “close and substantial relationship” with the child and is in the child’s best interest. This delegation of visitation is temporary during deployment.
  • The court must give precedence to scheduling a hearing on a returning military parent’s request to review or modify a custody or visitation order that was based on deployment.
  • If custody or support orders are not in place and a parent faces deployment, the parent’s petition to establish proper orders before deployment must tell the court about the deployment to prioritize making proper orders and scheduling a hearing before the parent must leave.
  • Any court proceeding under the Act may allow electronic communication so parties or witnesses can participate from a distance.
  • Most court orders under the Act must require the nonmilitary parent to accommodate the military parent’s leave schedule and facilitate email and telephone contact between the child and the deployed parent. The deployed parent must keep the at-home parent reasonably apprised of their leave schedule.

This introduces an important state law for Virginians facing military deployment who have minor children subject to custody and visitation arrangements. It is important to be familiar with this Act as well as the federal SCRA and the rights and protections these laws provide to deploying parents.