Attorneys Dedicated to Family Law
Welcome to attorneys dedicated to Family Law, the podcast where our experienced attorneys at Curran Moher Weis guide you through the complexities of family law. Whether you are facing a divorce, custody dispute, or financial matters. Our dedicated team is here to provide strategic insight and practical advice. Each episode, one of our attorneys will dive into key legal topics. And help you navigate your unique situation with confidence.
Attorneys Dedicated to Family Law
EP #6: Interstate & Military Custody Challenges with Demian McGarry, Esq.
Military deployments and interstate relocations create unique custody challenges that require specialized legal knowledge. Attorney Demian McGarry breaks down the critical framework that determines which state has power to make custody decisions when parents live across state lines.
Before making any custody-related decision across state lines, consult with an experienced family law attorney who understands the nuances of interstate jurisdiction and military family law. The wrong filing in the wrong state can delay your case and potentially harm your position in these already challenging situations.
You know, if I move does the order carry with me where I move, and so that really is what is designed to do you want to begin. Basically, the threshold analysis with the UCCJA is really something called the home state of the child, so that's where if a client is figuring out where to file, it's where the child has lived with a parent or guardian in a state for at least six months. That's your initial threshold.
Intro/Close:Welcome to Attorneys Dedicated to Family Law, the podcast where our experienced attorneys at Curran Moher Weiss guide you through the complexities of family law, whether you're facing a divorce, custody dispute or financial matters. Our dedicated team is here to provide strategic insight and practical advice. Each episode, one of our attorneys will dive into key legal topics and help you navigate your unique situation with confidence. Let's get started.
Charlie McDermott:Welcome back viewers and listeners. Charlie McDermott, co-host, and today I am graced with the presence of Demian McGarry. Esquire, Dem, how are you doing today?
Demian McGarry, Esq.:I'm doing very well. It's a gorgeous day here in Virginia.
Charlie McDermott:Well, thanks for carving out time today. Dem is a seasoned family law attorney here at Curran Moher Weis. Dem brings decades of experience handling high conflict divorce, complex custody disputes, including international cases, and family law appeals. He represents clients across Northern Virginia and Washington DC and has built a reputation for his assertive, strategic and client-centered approach. In addition to his litigation and appeal work, dem has taught legal seminars to fellow attorneys and JAG officers on military family law issues. Dem, thanks again for being here. Are you ready to get started? I am, because I have a series of questions for you here that I know our audience is just really appreciative of what you're going to share with them. So, number one when parents live in different states, how is it decided which state gets to rule on custody?
Demian McGarry, Esq.:Well, fortunately, there is a law known as the Uniform Child Custody Jurisdiction and Enforcement Act, commonly known as the UCCJEA, and that has provided some uniformity to these types of decisions. It's a law that was initially created by a national commission with the objective of trying to prevent interstate custody disputes and to provide for the enforceability of custody orders across court lines, and Virginia has adopted it. Initially started as a model law, Virginia has adopted it, and the last time I checked, I think there was only one state I mean Massachusetts that has not adopted the UCCJEA.
Charlie McDermott:Okay, so what is the, if I have it right, the UCCJEA, and how does it impact interstate custody cases?
Demian McGarry, Esq.:Yes. So again, the acronym is the Uniform Child Custody Jurisdiction and Enforcement Act. And what it does is it really? It provides the answer to where do I file for custody of my child and it provides a certain amount of uniformity and reliability. So if you have any given facts, circumstances, you look to the UCCJA and you can get the answer as to where do I file. You know, if I move, does the does the order carry with me where I move, and so that really is what, what is designed to do you want to begin. Basically, the threshold analysis with the UCCJA is really something called the home state of the child. So that's where, if a client is figuring out where to file, it's where the child has lived with a parent or guardian in a state for at least six months. That's your initial threshold.
Charlie McDermott:Okay, okay, well, awesome. So military families, I mean they're moving around, they're being deployed. So how do custody rights change when a parent is deployed?
Demian McGarry, Esq.:Well, there's two aspects to this. There's protections afforded under the Service Member Civil Relief Act, and then there's also Virginia has adopted something known for the custody and visitation of the children. So, for example and in practice this affects two different scenarios you have, let's say, you have a parent that has primary custody and they're the deploying parent, and the other scenario would be where the deploying parent doesn't have primary custody and has visitation rights. So in the instance of the primary custodian who's deploying, the custody would be temporarily transferred, all things being equal, to the non-deploying parent In the terms of a visitation. So let's say a parent has a traditional visitation schedule every other weekend, split holidays, a couple of weeks during the summer, that parent actually can delegate their visitation rights to other family members.
Demian McGarry, Esq.:So you know parents gone, you know grandma and grandpa can get the three weeks in the summer or Thanksgiving, so that's a really neat part of the law and these are temporary and that's an important consideration.
Charlie McDermott:Temporary, but it will last as long as that individual is deployed.
Demian McGarry, Esq.:That is correct. And coming back, the presumption is you go, go back to the order that was in effect. If somebody wanted to challenge that, then it's their burden to say why that order that was in effect should no longer continue, and that's to prevent the deployment from being used as a means to change custody or visitation.
Charlie McDermott:Okay, okay, all right, well, good stuff. So then, what legal protections are in place for active duty service members under the SCRA?
Demian McGarry, Esq.:Well, the biggest one is that you can get an automatic 90 day stay of any legal proceeding, and a custody proceeding would fall under that. So that means that you know if the non-deploying parent had filed for custody, the deploying parent can get a automatic, no questions asked, 90-day stay of those proceedings, and that's to protect their due process rights. Now there's a mechanism to extend it beyond the 90 days. The state court judges have some more discretion in that, but they still take very seriously the obligations of the deploying service member. The once they return, their case will get expedited on the court's docket because of all the delays. So that will that will take preference, ok.
Charlie McDermott:OK, so then can military parents get custody or visitation orders modified during deployment.
Demian McGarry, Esq.:The short answer to that is no, you know, and again it's to protect the due process rights. Now if you, I mean you could conceivably have a scenario you know where, if there was something wrong in the household of the non-deploying parent, that there may be some temporary custody provisions made, and we're talking about really, you know, abuse and neglect, emergency type situations, but you know regular moving along in a civil custody angle of things they would not be able to. There is also another exception. I mentioned that delegation of visitation rights that could be modified if that's not going well, the parent or the grandparent or the aunt or uncle, whoever has the temporary visitation rights, whoever has the temporary visitation rights, the non-deploying parent, can file a motion to rescind those rights. But it's very, very, very difficult, you know, if next impossible, to try to get you know substantive custody decisions while a parent is deployed yeah, that makes sense, okay.
Charlie McDermott:Is deployed yeah, that makes sense, okay. And those individuals who fill in they need to be family members. So if you don't have a family member to take custody of the child, you know alternating weekends and so forth. I'm just curious what happens in those cases. Yeah Well, in those, in those cases the non-deploying parent has the full-time. Yeah, yeah, yeah, boy, you know military life is challenging enough. And then you know, with divorce and kids and a lot to a lot to shoulder it.
Demian McGarry, Esq.:It is I mean, they've gotten um uh, the military really has gotten um over the past couple decades much better with respect to, you know required to develop a development of family care plans and things like that to try to make a very stressful situation as smooth as possible for the service member and their families.
Charlie McDermott:Yeah, that's great. So what happens then, dem, if one parent wants to move out of state with the child, how does relocation work?
Demian McGarry, Esq.:Yeah, relocation cases. Out of all the different types of cases in family law, these are the most difficult to settle because it's very difficult to find any middle ground. And so what would happen is that there, by law, that there is a 30-day advance notice requirement that any parent intending to relocate and have a change of address must give to the court and to the other parent. Now, most of the times there's going to be some discussions prior to 30 days where a parent's saying hey, I want, you know, I'm in Virginia but I want to move to Illinois. Okay, and there's, they try to work out agreement, but you know, if it's, if it's if it's within the 30 days, you can rest assured that there's going to be a rush to the courthouse by the non-moving parent to try to prevent that move. And so, with relocation cases is, you know, can the current custody order remain practically in effect if the other parent relocates? Parent relocates and moving across state lines and a lot of times even, you know, within Northern Virginia or within the same state, can be considered relocation. What would happen is, is the parent wanting to relocate, as they burden, they would file something called a motion to modify custody and visitation and they would then have to show and persuade the judge that the relocation is in the child's best interest, and there's a lot of different factors that they would look at. They would look at, you know, how is the child developing in their current environment? You know what about the? You know the peer relationships of the child activities, the relationship that the child has with the non-moving parent. Okay, can't, you know? A question would be asked. You know, is the relationship such that it can be maintained long distance by maybe, you know, tweaking with the schedule, you know having less frequent visits but ones of longer duration. So these are all things that the person wanting to move is going to have to persuade the court to allow. Okay.
Charlie McDermott:Okay, so then what's the difference between temporary and permanent custody arrangements across state lines?
Demian McGarry, Esq.:Well, the UCCJA actually makes no distinction in the enforceability and the honoring of custody orders, whether they be permanent or temporary. So if you only have a temporary custody order, that's still fully enforceable in any other state that you know that it may come up for enforcement.
Charlie McDermott:Okay, okay, so there are. Are there common pitfalls that parents make when moving or filing in the wrong jurisdiction?
Demian McGarry, Esq.:Common pitfalls that parents make when moving or filing in the wrong jurisdiction. Yes, so let's take. Let's take the filing first and with the filing and you often see this more often with with with pro se litigants, unrepresented parties, because you'd hope the attorney would know, would know the law on this but you'll see a premature filings where you don't have the home state six-month jurisdiction yet. You may see a filing and this can even happen with attorneys where there may be an order from another state and another parent still resides in that state.
Demian McGarry, Esq.:But they file in Virginia. But there's there's to modify an order, but there's a. There's an order, you know, in another state. You know you can't. You can't do that. So you'll see. You will see that pitfall for filing as well.
Demian McGarry, Esq.:The other pitfall I've seen is so under the UCCJEA, you know the, the state that issued the initial custody order keeps jurisdiction so long as at least one parent still remains in that state. If both parents move, you know, then it's fair game. But I've seen where people have an erroneous understanding. They have to go back to the initiating jurisdiction to file even though no parent no longer lives there. So those are some of the filing pitfalls that I've seen. As far as moving, the biggest pitfall that I've seen is where a parent considers it already a done deal and that's a strategic no-no. Where they will already have put a down payment on house or security deposit on an apartment or a rental home, they start looking to enroll the children in the schools before the court has even given them the permission to relocate. And the second one is that, and particularly when there's not a lot of trust between parents there advance, you're going to move but you wait until the absolute last 30-day deadline. That's going to cause problems and stress unnecessarily.
Charlie McDermott:I can see that. So how do you create parenting plans that work long distance, especially for military families?
Demian McGarry, Esq.:Yes. So what I do is you know the you want to ensure, in normal circumstances, you know, frequent and continuing contact. You know with both, with both parents. So if you have, if you're crafting a long distance custody arrangement, if I'm, if I'm representing the, you know the parent is that person does not have primary custody and is going to be long distance.
Demian McGarry, Esq.:I want to ensure that that I get big blocks of time, not split summers. I want to try to ensure that, ensure that that parent gets the majority of the summer. Maybe they get every spring break. Winter break is kind of hard to get every year. Usually that is alternating. So I would want to make sure that that when the children are off from school, that that opportunity is maximized.
Demian McGarry, Esq.:And the other thing to look for is to make sure that there's going to be information sharing. You know it's easier now in the digital world, but still, distance, does you know, is it just by the fact that you're going to be long distance? You know you're not there every day, and so you want to make sure that the parent, you know that's staying put with the children is sharing information about extracurricular activities, you know doctor's appointments, you know school and making sure that they're invited to all the parent-teacher conference special meetings so you know that parent is not left in the dark. And those are some of the things that I you know that I would, you know, want to make sure that are in a you know long long distance custody and visitation agreement.
Charlie McDermott:Excellent, excellent. Thank you, dem. So Dem, as we wrap up here, any final thoughts on today's topic.
Demian McGarry, Esq.:Yes, I would say that if you already have a custody order, it's important that before you do anything with that order, you know to ask yourself where do the parents live? Are any of them out of state? If I want to modify it, do I have enough changes and circumstances to modify it? Do I need to file in another jurisdiction now that I'm no longer in the initiating jurisdiction? Do I have to file it in the jurisdiction of where the other parent lives or where I live now? These are all questions that definitely should not be navigating on your own. You should note them and then definitely take them to you know, to an attorney you know of your choosing, and for the military parents out there, just remember that the deployment you know cannot be used as a sole basis to change custody upon the return of that deploying parent.
Charlie McDermott:Good stuff, good stuff. Well, dem, thank you so much for sharing your insights today and for our listeners. If you're facing a custody dispute, military relocation or just simply want to understand your rights as a parent under Virginia or DC law, the team at Curran Moher Weiss is here to support you. You can learn more about them and our full team of attorneys by visiting curranmoher. com that's curran C-U-R-R-A-N, moher M-O-H-E-R. com. Be sure to subscribe to Attorneys Dedicated to Family Law wherever you get your podcast, and if today's episode was helpful, we'd be grateful if you left a review. Thanks for listening. We'll see you all next time.
Intro/Close:That wraps up this episode of Attorneys Dedicated to Family Law. We hope you found today's discussion insightful. If you have questions or need personalized legal guidance, visit us at currenmohurtcom. Be sure to subscribe so you don't miss our next episode, where another of our experienced attorneys will tackle an important family law issue. Thanks for listening. Until next time, we're here to help you protect what matters most.