Child Custody in a Military Divorce

Posted: 5 July, 2023

Following a divorce, sharing parenting responsibilities can be quite challenging for just about anyone. However, as far as military servicemembers are concerned, the issues can be even more complicated, based in part on both stateside assignments, which can put the servicemember anywhere in the country at a moment’s notice, as well as uncertainty regarding future deployments overseas.

Parenting and Family Care Plans

The military has specific rules in place for situations in which a child’s caretaker, or both caretakers if there are two parents, might be deployed. It is due to those situations that make a Family Care Plan a required element of a divorce involving a servicemember.

All divorcing parents should have a parenting plan in place, in which they describe how they will share time with and care for their children following the divorce. If you are in the military and uncertain about where, when or for how long you’ll be deployed, a Family Care Plan is especially important, and it may be both practical and useful for you to develop alternate parenting plans for a variety of possibilities. For example, if the servicemember might remain at a base that’s close to where the children live, you can prepare a Family Care Plan that calls for visitation consistent with expected free time for that parent.

At the same time, both spouses should prepare a plan that you’ll implement if and when the servicemember is deployed overseas or transferred farther away. Communication is really important — often service members don’t know exactly what’s going to happen, but it’s important to convey to the other parent all the information that is available and make contingency plans that will cover your entire family, whatever happens.

Any family care plan should describe in great detail who will provide care for your children financially, medically and logistically if you are away due to military duty. If your custodial agreement is already in place and does not contain a provision related to military relocation, you can work with the court and your child’s other parent to modify the order appropriately. As you create this plan, there are several things to keep in mind. For one thing, any arrangements you make will generally be subject to state laws, not federal. Also, state custody laws provide the basis for a court’s determination when you request permission to relocate with your child. In some states, you may be required to demonstrate how a move will benefit the child before your request will be approved. Also, be aware that their states may prohibit your relocation without compelling circumstances.

Your Rights Under the Servicemembers Civil Relief Act (SCRA)

The Servicemembers Civil Relief Act protects the legal rights of any servicemember when they have been called to active duty, including the following:

• Active-duty members of the regular force
• Members of the National Guard when serving in an active-duty status under federal orders
• Members of the reserve called to active duty
• Members of the Coast Guard serving on active duty in support of the armed forces

Under the Servicemembers Civil Relief Act, you can obtain an automatic 90-day stay or postponement of a court or administrative proceedings if your military service materially affects your ability to proceed in the case. Your stay can be longer, at the discretion of the judge, magistrate or hearing officer.

The custody order that was in place before the absence of a military parent should be reinstated within a set time upon the return of the military parent, absent proof that the best interests of the child would be undermined. The non-absent parent should bear the burden of proof.

In addition to protecting custody rights, 38 states protect a service member’s visitation rights while deployed by allowing these rights to be delegated to another person. Since state protections vary, the best advice is to ask your attorney about the applicable state laws affecting your case.

What’s in a Family Care Plan

Any Family Care Plan must set out what will happen with the servicemember’s children if the service member is deployed or is required to be absent, for either the short term (less than 30 days) or for a longer term (31 days or more).

While some specific requirements may vary slightly among the various branches of the service, the basics are essentially the same. Any plan must include the names and contact information of the person or persons who would care for the child, who must be a civilian over the age of 21, along with a certification that the caregiver has all necessary information and has agreed to accept that responsibility. The plan must also include an alternate caregiver, in case the primary caregiver is unable to perform their responsibilities when the time comes. Since the plan includes both short-term and long-term plans, it’s possible to name a different caregiver for each, with a short-term caregiver being someone local who is able to step in for a few weeks and a longer-term caregiver who might live farther away, but is more appropriate for a longer period of time, like a relative or the other parent.

The plan will also include information regarding how the child will be supported financially during the servicemember’s absence, including powers of attorney to allow the caregiver to deal with financial matters on the servicemember’s behalf. The military also requires a lot of information about transporting family members if the Family Care Plan goes into effect, including a lot of detail such as how airline tickets will be paid for how the caregiver and child will get to the airport. The plan must also include the transfer arrangements for the child to the caregiver, should the servicemember be deployed on short notice.

In case in which only one parent is in the military and the parents have joint custody, generally speaking, the non-military ex-spouse will care for the child when the military parent is unavailable through either assignment or deployment. However, when the military parent has sole custody, many states will consider transfer of custody to the other parent to be a change in custody. However, courts commonly will allow the custodial military parent to allow a new spouse or another relative, like an aunt, uncle or grandparent, to take over as the child’s guardian and sole custodial parent during a deployment. This type of arrangement must include written consent if the other parent is not named as caregiver at times like this.