Consider this common scenario: A servicemember and a civilian have a child together. They break up, but because they were never married, there is no presumed paternity of the child or divorce court order defining custody and visitation. Now the servicemember is PCSing across the country, and he or she wants to bring the child along. The civilian partner wants the child to stay in Virginia. How might this play out and what options are available?
When partners are never married, Virginia courts first require an establishment of paternity. The court will not adjudicate custody and visitation of a child until it is confident that the parties are biological parents. Paternity can be established by signing an Oath of Paternity Affidavit, swearing under oath in open court, or even taking a DNA test. Each court and judge can have a different preference as to how paternity should be established. Once paternity has been confirmed, then the court can adjudicate custody and visitation.
Since custody and visitation of the child have not been previously court-ordered in this scenario, it will be considered an initial petition for either parent who initiates the process. In Virginia, the court must consider all of the factors in Virginia Code § 20-124.3 in making a custody and visitation determination. The judge’s decision must explain which factors were relied upon. While the court must examine all of the factors, it does not have to give them equal weight when issuing a ruling. See Sargent v. Sargent, 20 Va. App. 694, 702 (1995).
Until a court determines custody and visitation, both parents have equal rights to the child. While the servicemember could take the child and go to his or her next duty station, the civilian parent could also go and bring the child back, or withhold the child from leaving in the first place.
However, Virginia only has jurisdiction over the child if it has been the child’s home state for at least six months preceding any court action. So if the military partner leaves with the child and the other parent waits too long before seeking custody (and the child establishes jurisdiction in another state), the civilian parent has lost his or her chance to file in Virginia.
Does the fact that the servicemember is moving across the country impact custody?
For initial petitions, yes and no. The “best interests of the child” standard still applies. While there is a separate standard in Virginia specifically for relocation cases, that only applies when custody has already been court-ordered and now one party wishes to change the order to allow them to move with the child (or the other parent wishes to stop them from doing so). Therefore, even though the servicemember is moving across the country, the applied standard does not change.
However, the court must still consider whether it is in the child’s best interest to move to a new state and town, go to a new school, and leave all of the child’s established relationships and activities behind. So the servicemember’s move can still have an enormous impact in determining what is in the child’s best interests.
Does it make a difference if the move is mandatory because of military orders?
Not really. You may have heard of Virginia’s Military Parents Equal Protection Act, which provides special protections for deployed military parents regarding custody and visitation, but that Act protects the deployed parent from parental alienation while they are serving our country. The Act “does not establish a generalized preference for the military parent for purposes of child custody or visitation.” See Rubino v. Rubino, 64 Va. App. 256, 263 (Ct. App. 2015). And it doesn’t apply if the parent is not deploying or when orders permit family to accompany them.
Furthermore, it is not an abuse of discretion for the court to consider a parent’s military relocation under the tenth factor of § 20-124.3, which is essentially the “catch-all” factor. However, the court is still required to make their determination based on what is in the best interests of the child, so the fact that a parent’s relocation is mandatory cannot be the controlling factor for deciding custody.
If you have children and a relocation may affect your custodial schedule, it’s important to discuss all of your options with a knowledgeable attorney. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Ashburn-Leesburg, Manassas and Fredericksburg-Stafford, representing clients throughout Northern Virginia. Contact us to schedule a consultation today.