Courts determine child custody arrangements based on the best interests of the child. Under this standard, courts decide custody issues based on what would serve the child's overall well-being. Many factors are used in the best interests analysis.
A parent's military service can present child custody issues. Military parents risk losing child custody when deployed. If you're in the military, your service may present special child custody issues, and it's often best to seek a lawyer's advice.
Military parents may have to serve in a foreign country. They may have to give up custody temporarily. However, upon returning home, they sometimes face difficult custody battles.
Courts may find that it's best for the temporary custody situation to be made permanent, based on the child's best interests. Military parents are in a sense, penalized for their service.
Stay of Custody Proceedings
If a military parent leaves a child with a step-parent or a relative during deployment, the other parent may file for custody of the child. Often, temporary custody is sought, then permanent custody. Service duties often make it hard for military parents to fight a custody battle.
The Servicemembers Civil Relief Act (SCRA) is a federal law that allows military personnel to stay civil proceedings during military activation. A stay is a temporary suspension of a legal proceeding. However, many courts don't follow SCRA when it comes to child custody. They believe that the best interests of the child outweigh any federal legal protections to military parents.
State Laws Protecting Military Parents
Many states believe that military parents should be able to regain custody after they return. They shouldn't be penalized for their service. 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. Any temporary custody changes made because of deployment revert to the original arrangement when the parent returns from duty. More than 20 states have military custody protection.
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 will maintain 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.
Enforcement of Child Custody
If a military parent wrongfully takes a child, the other parent might have problems enforcing custody rights. The Army 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.
Questions for Your Attorney
- Can the court take away my custody rights if I am deployed to another country?
- Does my new spouse automatically receive legal custody of my child if I am deployed overseas?
- If I am deployed to a different country, can I stay a child custody modification proceeding until I return home?