Child Custody and Visitation in the Military

A military spouse can argue for child custody, but the decision may be complicated by military obligations. At one time there was a sort of unspoken presumption against service members obtaining custody, particularly when men dominated the ranks of the military. This is apparently no longer the case.

The mere fact of military service is not enough to prevent being awarded custody. The civilian spouse cannot argue that he or she should get custody simply because his or her partner is in the military.

A female service member can argue the advantages to life as a military dependent: most posts and bases have excellent school systems and many opportunities for recreation. In addition, most military bases have day-care facilities. All of the above are provided to a service member at no cost. The post exchange, or PX, sells consumer goods that can be purchased at greatly reduced prices. A female service person with children can make a strong argument for her custody rights, given the above.

Both spouses, however, must come to terms with the fact that in the military the needs of the service come first. An overseas assignment could derange the best laid plans for custody. As is the case in civilian life, each family is different.

In awarding custody, in military and civilian divorces, courts consider the "best interest of the child." To make this decision, the courts consider many factors including, but not limited to, the child’s preference if he or she is mature enough to make a decision; the ability and willingness of each parent to provide for the child’s physical, intellectual and emotional well-being; the willingness of the custodial parent to provide continuing contact between the child and the noncustodial parent; and abusive or criminal conduct by the other parent. These are the same considerations in custody decisions as in civilian divorces, so the military service (including the demands of training schedules) is only one factor in determining custody.

The conflicts in Iraq and Afghanistan have tested the imagination and resourcefulness of military families, both intact and broken, in regard to child care arrangements, including custody and visitation. These are the first American military wars where significant numbers of female Service Members are also parents.

As is the case in civilian life, sometimes the other parent is in the military, which prevents scheduled visitation. A Department of Defense directive, which has the force of law, requires service members, civilian military employees, and their family members who are outside the United States to comply with court orders requiring the return of minor children who are subject to a court order on custody or visitation.



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Suggested Reading
Divorce & the Military II Divorce & the Military II
DIVORCE AND THE MILITARY II is the newly published comprehensive guide for military members (active duty, reserve/guard, and retired), spouses, and their attorneys, on the Uniformed Services Former SpousesŐ Protection Act (USFSPA). The USFSPA is the federal law that permits the award of military retired pay in a divorce.

Author: Marsha L. Thole and Frank W. Ault


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OTHER BENEFITS -- Under the Uniform Services Former Spouse Protection Act (USFSPA) a former military spouse is eligible for full medical, commissary and exchange privileges when 1) the marriage lasts at least 20 years, 2) the military member performs at least 20 years of service creditable for retired pay, and 3) there is at least a 20-year overlap of the marriage and the military services. If the spouse remarries, eligibility for benefits is terminated. The benefits are revived if the subsequent marriage ends in divorce.
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