Delegating Visitation During Military Deployment

Parents who serve in the military make many sacrifices for their country. One of those is the ability to spend time with their children when they are deployed. What happens to visitation during deployment, when a parent and child cannot be together? In South Carolina, custody and visitation on deployment can be delegated to another person, an adult who is not a parent of the child but who is a family member or other person with whom the child has a close relationship. That could be a stepparent, a grandparent, an aunt or uncle, or even a close family friend.

The purpose of visitation is to enable a child to maintain a close relationship with both parents when the parents are not in the same household. When it’s not possible for one parent to be physically present, the next best thing may be for the child to spend time with the deployed parent’s spouse or family of origin, maintaining bonds with that side of the family.

South Carolina Regarding Custody and Visitation on Deployment

The state law that governs custody and visitation on deployment is SC Code § 63-15-532 (2021). That section of the code states in part:

“On the motion of a deploying parent and in accordance with the law of this State other than this article, a court may grant caretaking authority of a child to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship if it is in the best interest of the child.”

Let’s unpack that language a little bit to see what it really means. As we just mentioned, it could mean that instead of having visitation with a deployed parent, a child could have visitation with a stepparent or grandparent. But that is not automatic. The parent who is deploying must make a motion to the court that oversees the custody matter to delegate visitation during deployment. Even then, the delegation of custody is not a foregone conclusion. The child must have a “close and substantial relationship” with the other adult, and the delegation of visitation, like all custody and parenting time decisions, must be “in the best interest of the child.”

What is a “Close and Substantial Relationship?”

Since the law requires that custody be delegated only to an adult with whom the child has a close and substantial relationship, it’s important to understand what that means. Unfortunately, the statute doesn’t provide any guidance with regard to the definition of that term. As a result, there is room for each parent’s attorney to argue whether a relationship is, or is not, “close and substantial.”

It’s fairly obvious that some relationships would qualify as close and substantial. For example, grandparents whom the child has seen nearly every weekend for several years, spent overnights and vacationed with, and who have regularly babysat the child would almost certainly be seen as a close and substantial relationship. The child knows them, trusts them, feels safe with them, and is closely related to them.

On the other hand, the deployed parent’s new spouse, whom the child has met only a couple of times and has never been alone with, might not be considered a close and substantial relationship, despite the deployed parent’s close relationship with the new spouse.

In between those two examples lies a lot of gray area. If you are a military parent who wants to delegate visitation during deployment, or a parent who wants to oppose delegation of the other parent’s parenting time, it’s best to have a family law attorney who knows how to argue your position on this factor.

Is Delegation in the Best Interest of the Child?

If you’ve done any reading at all about South Carolina custody and visitation, you’ve come across the phrase, “the best interest of the child.” Acting in a child’s best interest is the cornerstone of all custody and parenting matters, and fortunately, the law provides very specific guidance as to that determination. SC Code § 63-15-240 requires that a court consider the following factors in determining what is in the best interest of a child:

“(1) the temperament and developmental needs of the child;

(2) the capacity and the disposition of the parents to understand and meet the needs of the child;

(3) the preferences of each child;

(4) the wishes of the parents as to custody;

(5) the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;

(6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;

(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;

(8) any effort by one parent to disparage the other parent in front of the child;

(9) the ability of each parent to be actively involved in the life of the child;

(10) the child's adjustment to his or her home, school, and community environments;

(11) the stability of the child's existing and proposed residences;

(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;

(13) the child's cultural and spiritual background;

(14) whether the child or a sibling of the child has been abused or neglected;

(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;

(16) whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and

(17) other factors as the court considers necessary.”

As you can see, this is an extensive list, and the last factor is a catchall, essentially allowing the court to take into consideration anything it considers relevant to the question of whether delegation of visitation during military deployment would be in a child’s best interests.

Does the Issue of Delegation Have to Go Before a Judge?

If the parents can agree on the delegation of parenting time during one parent’s deployment, a judge is likely to approve any agreement they make on delegation without the need for a hearing, so long as there is no reason to believe that delegation is not in the child’s best interest.

However, if parents cannot reach an agreement, the parent who is facing deployment will need to motion the court to allow delegation of visitation. In that case, it’s possible that the court might appoint a guardian ad litem to make a recommendation to the court about whether the delegation would be best for the child.

In any case, it is to a parent’s advantage to consult an attorney with experience in military divorce and family law issues. An experienced attorney may be able to help you negotiate an agreement, or argue for your position in court if necessary. To learn more, contact Brinkley Law Firm to schedule a consultation.