Family Law

Child Custody Issues Involving Military Parents

By Kristina Otterstrom, Attorney
A look at how being in the armed forces affects custody plans.

Military Deployment

Military deployments may require a parent to serve in a foreign country. This separation will require the military parent to give up custody, at least temporarily. When the deployed parent returns home, a judge will need to turn a temporary custody arrangement into a permanent one.

In situations where the court decides to make the temporary custody situation permanent, many military members can feel like they’ve been penalized for their service. While a child’s best interests are always the deciding factor in custody, the Department of Defense has created the USA4 Military Families Initiative to educate policymakers and state leaders about the special needs of military families. Specifically, the initiative seeks to ensure that a parent’s previous or potential deployment isn’t the basis of a child custody decision.

What Happens if I’m Deployed in the Middle of a Custody Hearing?

Unfortunately, some parents file for custody during a military parent’s deployment, thinking that it will give them a custody advantage. The Servicemembers Civil Relief Act (SCRA) provides certain protections to military members including a “stay” or freeze on any civil proceedings during one parent’s active military duty.

For example, if one parent is deployed and the other parent files for divorce or custody, all proceedings are subject to an automatic stay (typically for 90 days). During this time, the service member is notified of the case through military personnel and assigned a military attorney. In some cases a judge may decide to continue the stay past the 90-day period. Yet, even in light of the SCRA, a child’s best interests and immediate needs outweigh the legal protections for military parents.

Military Relocation

How relocation affects child custody is a matter of state law. As a result, custody cases can become exceedingly complex when a military member parent relocates. For example, if a military family has lived overseas for an extended period of time, but moves back to the US, a foreign court in their former city or town may have authority to make decisions in the case. extended period of time but moves back to the US, it’s possible that a foreign country’s court has jurisdiction over the case. Generally, a child’s home state maintains jurisdiction over a custody case if the child or the child’s parents were only temporarily absent from the state.

There can be additional challenges for separated or divorced military parents that need to relocate. Certain states require that the relocating parent show how the move will benefit the child. At least 20 states extend custody protections to military parents. These state laws require judges to consider factors other than the parent’s military service when deciding custody.

Questions for Your Attorney

  • Can the court take away my custody rights if I’m deployed to another country?
  • Will my spouse automatically receive legal custody of our child if I’m deployed overseas?
  • If I’m planning to get divorced, is it better to start the process before I’m deployed?
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