Courts determine child custody arrangements based on the best interests of the child. Under this regime, courts decide custody issues based on what would serve the child’s overall well being, and many factors are used in the best interests analysis. However, special considerations come into play when a military spouse goes to family law courts with child custody at issue.
Military service, by one or both parents, can present thorny child custody issues. Approximately 142,000 members of the Armed Forces (active, Guard, and Reserve) are single custodians of minor children. Additionally, a number of servicemembers have re-married and now live in a household of one biological parent and his or her new spouse, who is a stepparent. Most complex of all the situations, perhaps, are those in which a single service member has physical custody of a child without ever having obtained an order of custody from any court. When any of these custodial-servicemember parents deploy, attend military training, or attend a service-mandated school, the question arises: “Who takes care of the children while I’m gone?” Someone has to answer that question, and often, it is a state court family law judge.
Military parents, who may have to serve in a foreign country, risk losing child custody when deployed, so a parent in the military may present special child custody issues, and it’s often best to seek a lawyer’s advice.
Upon deployment aboard or even assignment away from home, a military parent may have to give up custody temporarily only to face difficult custody battles upon returning home.
Based on the child’s best interests, courts may find that it’s best for the temporary custody situation to be made permanent. Military parents are in a sense, penalized for their service because service duties often make it difficult for military parents to fight a custody battle.
Child custody can become much more complicated when the parents are divorced and one uses a military deployment as a chance to reclaim a child. Moreover, even when the parents are not battling, custody can be more complicated depending upon whether the mother or the father is the military parent. For example, if a military parent leaves a child with a stepparent or a relative during deployment, the other parent may file for custody of the child. Often, temporary custody is sought, then permanent custody. And sometimes both spouses are in the military.
The Servicemembers Civil Relief Act (SCRA) is a federal law that allows military personnel to stay civil proceedings during military service. A stay is a temporary suspension of a legal proceeding. However, many courts do not apply SCRA when it comes to child custody. Judges believe that the best interests of the child outweigh any federal legal protections to military parents.
More than 20 states have military custody protection. These states have passed laws that protect parents while they’re deployed. In these states, laws provide that permanent custody changes can’t be made because of a parent’s military service and permit military parents regain custody after they return. Any temporary custody changes made because of deployment revert to the original arrangement when the parent returns from duty.
In addition, relocation based on military service can make it difficult to determine what court has jurisdiction or authority in a custody case. If a military has lived abroad for some time, it’s possible that a foreign country’s court could have authority.
Usually the home state court retains authority if the child or parents are only temporarily absent from the state. If a military custodial parent is relocated, the court has to determine whether the parent and child are temporarily or permanently absent from the state.
If a military parent wrongfully takes a child, the other parent might have problems enforcing custody rights. The military does have regulations requiring service members to obey court custody orders. All military services maintain locator services that have the location information of military personnel.
An attorney can answer key questions that include whether:
- the court take away custody rights if a spouse is deployed to another country;
- a new spouse automatically receives legal custody of a stepchild if his or her parent is deployed;
- a custody action can be stayed if the service member is deployed.