Deployed and Parenting: How Virginia Protects Custody and Visitation for Military Families
If you deploy while a Virginia custody or visitation order is in place, deployment alone does not permanently change your parental rights. Under Virginia’s Military Parents Equal Protection Act, any order limiting your previously ordered custody or visitation because of deployment must identify deployment as the reason and must be entered as a temporary order. The law also provides procedures for maintaining parent-child contact, arranging delegated visitation, handling remote court appearances, and restoring the prior order after you return. Va. Code §§ 20-124.7–20-124.10
A military divorce may also involve special residency rules, federal protections, military retirement pay, and military income allowances. Understanding the framework can help you prepare before orders take effect.
How Deployment Can Affect an Existing Custody Order
Virginia law generally does not treat deployment as a reason to permanently penalize a parent. If a court limits custody or visitation because of deployment, the order must:
State that deployment is the basis for the limitation.
Be entered as a temporary order.
Require the nondeploying parent to provide the court with 30 days’ advance written notice of any change of address or telephone number.
The temporary order may also address communication and leave schedules. Under Va. Code § 20-124.10, the order must provide that:
The nondeploying parent reasonably accommodates the deploying parent’s leave schedule.
The nondeploying parent facilitates telephone and electronic-mail contact between the deploying parent and the child.
The deploying parent provides timely information about the leave schedule.
These requirements recognize that deployment changes logistics, not the importance of the parent-child relationship. If you want to learn more about how Virginia courts approach custody and parenting-plan issues, see Coastal Virginia Law’s child custody page.
Can Visitation Be Delegated to a Family Member?
A deploying parent may ask the court to delegate all or part of visitation to a family member who has a close and substantial relationship with the child. The family member may include a stepparent.
The court must make a best-interests finding before granting the request. The law generally requires that:
The deploying parent had visitation rights before deployment if visitation is being delegated.
The deploying parent had physical custody before deployment if the request seeks visitation for a family member while the other parent has temporary physical custody.
The arrangement remains focused on the child’s best interests.
A delegated-visitation order does not create an independent, permanent visitation right for that family member. The deploying parent may ask the court to rescind the order, and the nondeploying parent may seek rescission after showing a material change in circumstances. Most importantly, the delegated-visitation order terminates by operation of law when the deploying parent returns from deployment. The returning parent must provide written notice of the return and termination of delegated visitation to the affected family member. Va. Code § 20-124.8
What Happens When the Deploying Parent Returns?
When the deploying parent returns, the court must give priority to a motion seeking to review or amend the deployment-based custody or visitation order. The hearing must be set within 30 days after the motion is filed.
At that hearing, the nondeploying parent bears the burden of showing that restoring the custody or visitation order in effect before deployment is no longer in the child’s best interests. This does not prevent either parent from later seeking a modification based on a separate material change in circumstances. It does mean that deployment-based restrictions are not intended to become permanent simply because the parent served away from home.
Hypothetical example: A Navy parent home-ported in Norfolk has regular visitation before receiving orders for an unaccompanied deployment. The court enters a temporary order addressing the deployment and allows the parent’s close family member to exercise part of the visitation schedule. When the Navy parent returns, the delegated-visitation arrangement ends by operation of law, and the parent can ask the court to review the prior visitation schedule.
Expedited Hearings and Remote Appearances
If no custody, visitation, or support order exists when a parent receives deployment orders, a petition establishing those arrangements must be identified as deployment-related when filed. The petition is to be expedited on the court’s docket under Virginia law. This process is intended to help establish reasonable arrangements before deployment disrupts access to the child.
If the deploying parent cannot reasonably appear because of deployment, the court may, for good cause shown and upon motion, conduct the hearing through:
Telephone communication; or
An electronic audio and video communication system.
These provisions may allow a servicemember to participate without physically returning to Virginia. They do not guarantee that every hearing will be conducted remotely or that every motion will be granted. The court still must consider the procedural requirements and facts of the case. Va. Code § 20-124.9 For additional background on Virginia custody and parenting-plan disputes, you can also review Coastal Virginia Law’s child custody page.
Virginia Residency Rules for a Military Divorce
Virginia generally requires one spouse to have been an actual bona fide resident and domiciliary of Virginia for at least six months before filing for divorce. Military service members receive specific statutory presumptions under Va. Code § 20-97.
A service member is presumed to have been domiciled in and a bona fide resident of Virginia if the member:
Was stationed or resided in Virginia for at least six months immediately before filing.
Was stationed or resided on a ship whose home port is in Virginia.
Was stationed or resided at an air, naval, or military base in Virginia over which the United States has exclusive federal jurisdiction.
The statute also addresses service members stationed overseas. A service member may be deemed domiciled in Virginia for the required period if the member lived in Virginia for the six months immediately before being stationed in a foreign country or territory.
The law further provides that, after separation, either spouse may establish a separate domicile. Because domicile and residency can involve detailed facts (especially after transfers, overseas orders, or separation) it is important to collect records showing where you lived and where you were stationed. If you are trying to understand how these rules fit into the larger divorce process, Coastal Virginia Law’s divorce lawyer page provides more context.
Military Retirement Pay and Federal DFAS Rules
Virginia may classify and divide the marital portion of military retirement benefits as marital property under Va. Code § 20-107.3. Generally, the marital share is the portion earned during the marriage and before the parties’ last separation, when at least one spouse intended the separation to be permanent.
Any division of military retired pay must also comply with the federal Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408.
The commonly discussed 10/10 rule is a DFAS direct-payment requirement. It generally requires:
At least 10 years of marriage; and
At least 10 years of overlap between the marriage and creditable military service.
The 10/10 rule does not necessarily determine whether a Virginia court can divide the marital share. Instead, it generally affects whether DFAS can send the former spouse’s property-division share directly.
A court order intended for DFAS direct payment must be precise. Depending on the retirement system and the structure of the award, DFAS may require information such as:
A fixed dollar amount, percentage, formula, or hypothetical award.
The member’s pay grade or rank at the time of divorce.
Years of creditable service at the time of divorce.
The high-three amount when applicable.
Reserve retirement points when applicable.
DFAS also requires a qualifying certified court order and application materials. Review DFAS guidance on former-spouse payments and DFAS’s court-order requirements before assuming that a proposed order will be administratively acceptable. You can also read more about related Virginia divorce issues on Coastal Virginia Law’s divorce lawyer page.
SCRA Protections During a Military Divorce
The Servicemembers Civil Relief Act may provide additional protection when military duties materially affect a servicemember’s ability to participate in a civil case.
Under 50 U.S.C. § 3932, a servicemember who is a party to a civil proceeding may be entitled to a stay of at least 90 days when the statutory requirements are met. Those requirements generally include information from the servicemember about how military duties affect participation and information from the commanding officer about the inability to appear and whether leave is authorized.
Under 50 U.S.C. § 3931, courts must follow specific procedures before entering a default judgment against a servicemember who has not appeared. A servicemember may also have a procedure to seek relief from a qualifying default judgment entered during military service or within 60 days after service ends, although protections depend on the facts and statutory requirements.
These provisions may delay a case or prevent a default from proceeding without additional safeguards. They do not automatically resolve custody, divorce, support, or property issues.
Preparation Checklist for Deployment and Divorce
Before deployment or a military divorce consultation, gather:
Copies of deployment orders, temporary-duty orders, transfer orders, and expected return timelines.
Current custody, visitation, support, and divorce-related court orders.
Leave schedules and a proposed communication plan for telephone, video, email, or other electronic contact.
Written documentation of address and telephone-number changes.
Leave and Earnings Statements, pay records, BAH documentation, bonuses, and other military compensation records.
Retirement-point statements, service-history documents, and any military retirement estimates.
School records, medical information, emergency contacts, and activity schedules for the child.
Marriage certificate, separation information, and records showing Virginia residence or stationing.
Questions you may want to ask during a consultation include:
Does the current custody order need a temporary deployment-related modification?
Should visitation be delegated to a particular close family member?
How can a remote appearance or expedited hearing be requested?
Do Virginia’s military residency presumptions apply to the divorce?
What language must appear in an order dividing military retired pay?
Does the marriage and service history satisfy DFAS’s 10/10 direct-payment rule?
How should BAH and other allowances be presented in a child-support calculation?
Frequently Asked Questions
Does deployment automatically change custody?
No. Deployment does not automatically change custody or visitation. A court order is required to limit previously ordered rights because of deployment, and that order must be temporary and identify deployment as the basis.
Must a servicemember be a Virginia resident to file for divorce?
Not necessarily. Virginia requires that one spouse satisfy the applicable six-month residency and domicile requirement. A servicemember may qualify through Virginia stationing or residence, including service on a Virginia-home-ported ship or at a Virginia base with exclusive federal jurisdiction. A servicemember stationed overseas may also qualify under the statutory presumption if the member lived in Virginia for the six months before going overseas.
Do military allowances count as income for Virginia child support?
Generally, yes. Virginia’s guidelines define gross income broadly as income from all sources, and BAH is generally included in the combined gross-income calculation. The statutory guidelines are rebuttably presumed correct, but a court may deviate from them when the required written findings are made. See Va. Code § 20-108.2 and Va. Code § 20-108.1.
Military service can make custody and divorce planning more complicated, but Virginia law provides tools to protect continuity, communication, and participation. Careful preparation can help you address deployment deadlines while preserving your ability to advocate for your relationship with your child.
If you need help reviewing a Virginia military custody or divorce issue, call Coastal Virginia Law at 888-402-7117 or request a free consultation.
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