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Child Custody Issues in Military Divorces

Being Active Duty in the military provides unique challenges for parents regarding child custody issues. Below are some of the major issues involving custody:

Types of Custody

In Virginia, there are two distinct issues of custody; legal custody for the child and physical custody of the minor child.

Legal Custody

Legal custody allows the parent to have input in major decisions affecting the child, such as schooling, religion, medical care, daycare providers, etc. It is presumed in Virginia that both parents will have legal custody of the child. This is referred to as joint legal custody. By having joint legal custody, both parties are supposed to discuss the major issues regarding the child with the goal of reaching an agreement on the above issues.

If the parties are not in agreement on an issue such as where the child should go to daycare, the issue can be heard by a judge, who will decide the issue for the benefit of the child. It is important that each party not be unreasonable in the discussion of these issues, as that may negatively impact the ruling of the judge. For example, if the child has been with the same daycare provider for a long period of time, there needs to be an extremely good reason to change to a new provider if the one parent wants the child to remain there. Not liking the daycare provider would not be a good reason, but both parents moving and making it extremely inconvenient to continue to use that daycare provider might be.

Physical Custody

Physical custody is where the child will reside. There are four main types of physical custody for children.

Sole Physical Custody

Sole physical custody means the child lives exclusively in one home. The non-custodial parent may not have any visitation rights to the child. This places the parent who has sole custody as the one who has the maximum amount of rights for the physical custody of the child.

Primary Physical Custody

Primary physical custody differs from sole physical custody in that there is an assumption that the parent who is not the primary physical custodian has some physical custody rights to the child. Normally this would be used when a reasonable visitation schedule is in place for the non-primary custodial parent.

Shared Custody

If the child will spend at least 90 days each year with both parents, the parties will have shared physical custody. 90 days per year means that each party has the child for at least 25% of the time. This is common when both parents live very close to each other and can mutually accommodate the child’s schedule. This requires a lot of communication and effort by both parties to make sure the child’s needs are being met.

Split Custody

If the parents have more than one child and at least one child lives primarily with each parent, the custody of the children is split between the parties. This is not very common and usually only comes about when one of the parties and at least one of the children have issues being with each other. This will normally occur as children get older, and are able to have more input into where they feel it will be in their best interest to reside.

Which custody arrangement should Service Member’s choose?

Each situation is different, and many times the life and requirements of being in the Armed Forces can affect these decisions. Deployments, duty schedules, and training exercises can make it very difficult for people who serve in the military to have sole or primary physical custody while in a deployable status, such as when a sailor is on Sea Duty. For these reasons, all of your options need to be fully explored. The availability of the parents to be with the children, and making sure that both parents have a meaningful relationship with their children is of utmost concern to the judges who decide custody cases.

Both parents need to be aware of this point when attempting to work out a parenting schedule for their children. If one party is attempting to restrict the other party for no good reasons, this can have very negative consequences in a custody dispute.

Therefore, it is important to discuss the issues of legal and physical custody with an attorney to find the solution to your particular case. If you have additional questions please contact me via phone, e-mail, or the chat feature on this website.

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