Military Child Custody

It is common for military personnel to have custody of children from their previous marriages or relationships. Deployments and other issues might get in the way of peaceful cohabitation for divorced parents and children. Therefore, serving in the military can disrupt the fulfillment of child custody arrangements.

Parenting Plans and Family Care Plans

Before getting a divorce, both parents should come up with a parenting plan, which should lay out the ground rules for spending time with children. If there’s a possibility that you might be unable to be close to your children due to military reasons, it’s better to plan ahead for these unexpected events.

As a military member, if you choose to be stationed at a base close to your kids’ current residence, it’s advisable to negotiate for a plan that will account for your free time when granting visitation rights.

You should also be ready in case you’ve moved out of the country, or just really far away from your kids for a mission. It is crucial to negotiate with your spouse to make room for unexpected events. If there’s any information available, you should share it with your ex-partner. This will allow you to make flexible plans and can’t be easily derailed if something unexpected happens.

In case only one of the parents serves in the military and the former partners have agreed on joint custody, it is usually the non-military spouse who takes care of the kids when the military member is busy.

However, if the child’s legal custodian is the military parent, and he/she urgently needs to go away for a mission, it is possible to transfer guardianship to a trusted relative. Most of the time, courts are not opposed to a transfer of custody if the military member is urgently needed elsewhere and he/she alone has the custody of the children.

Physical and Legal Custody During Deployment

A good plan must summarize the children’s living arrangements and the framework that the parents will use to provide for the child when one of the parents is unavailable due to military duties.

If one of the former partners serves in the military and the former couple has joint physical custody, it is the civilian parent who acts as a sole guardian of the children while the other parent is busy fulfilling military duties.

If the courts have granted sole physical custody to the military member, and the non-military parent is deemed unfit to take care of the child, the plan must have a close relative as a backup option for finding a legal guardian.

When both of the former spouses are unavailable due to their military duties, the plan should make the living arrangements for the child while the parents are unavailable.

You have the option to assign sole legal custody to the person who already has physical custody of the children. Alternatively, sharing joint legal custody with the said person is also an option.

Visitation During Deployment

Whenever one of the parents is unavailable due to military duties, the visitation schedule needs to undergo some changes. The updated terms should be included in the plan.

In some cases, parents include specific terms for slightly different visitation rights during their leave. Some plans also stipulate the right of one of the parents to communicate with his/her child using technology like video chat or telephone calls.

In your absence, you can also pick one of your close relatives to visit the child and use your visitation rights in this way.

What Happens After Deployment

Sometimes, plans can continue to operate unchanged after one of the parents comes back from the military. In some cases, there is a need to come up with a new plan and schedule.

You might feel the need to stipulate the rules for making changes to the document when one of the parents is unavailable due to military duties. For instance, you can rule out making changes to the document while you’re out of the country.

The Servicemember’s Civil Relief Act was introduced to protect the legal rights of military members when they’re away serving their country. It is possible to delay court proceedings or administrative processes if you can’t attend to them due to your service. This act can also protect you in case your former partner intends to change the terms of your child custody agreement or a parenting plan while you’re away.

Who Must Have a Family Care Plan?

The U.S army has provisions for situations when both of the child’s caretakers or a singular caretaker is deployed to fulfill his/her army duties. It is obligatory to have a Family Care Plan if:

• A member of the military is a single parent who is awarded the custody of children aged 18 and under, or shares custody with a former spouse.
• Both of the child’s parents are members of the military and have custody of children aged 18 and under. It is essential for both parents to sign an identical Family Care Plan.
• A member of the military is the sole guardian for a child aged 18 and under or is the sole caretaker for a family member who is unable to take care of himself/herself.

What’s in a Family Care Plan

The plan must include conditions of custody for a military member who is away temporarily or deployed for a long-term (more than a month). Each military branch will have different prerequisite conditions, but the core concepts are described below.

Caregivers and Contact Information

• The plan must include the contact details of a person who would act as a child’s guardian.
• That person must be 21 years old or older.
• As a child’s parent, you must provide this person with all the necessary tips to take care of the child.
• He/she must be willing to take on the responsibility of patronage.
• You’re also required to include a backup option for a caregiver in case this person is unavailable.

Since the plan must include temporary and long-term provisions, you may need to indicate more than one person to act as your child’s caregiver. The best person to act as a temporary caregiver is someone who lives nearby and has the time to temporarily care for your child when the caretaker is unavailable for few weeks.

A military member should probably choose someone closely related to acting as a long-term caregiver for his/her child. For instance, a relative who lives nearby might be a good option to act as a temporary caregiver, but someone very closely related to the child (potentially the other parent) might be a better option as a long-term option.

Information About the Child’s Other Parent

It is obligatory to include written consent in case your former spouse is not a specified caregiver.

Information About How the Child Will Be Supported Financially During the Service Member’s Absence

This must contain the evidence that a member of the military member has given powers of attorney to the caregiver or a legal guardian. Powers of attorney will give this person the ability to take care of the financial concerns while you’re away.

Information About Transporting Family Members if the Family Care Plan Goes Into Effect

The military expects you to come up with a solution for every small event, such as covering airline ticket costs and the transportation issues related to getting the child and the legal guardian to and from the airport. The plan must also arrange the transition between temporary and long-term custodians when a military member has to go away with very little time to spare.

The Name of the Person the Service Member Wishes to Take Custody of the Child in the Event of the Service Member’s Death

The default course of action is to give custody to another parent of the child. However, if the parent is present but isn’t fit to be a legal guardian (due to abuse or abandonment concerns), it is possible to select a different person and explain the reasons behind your decision.

Child Custody Issues Related to Relocation

If your existing custodial agreement does not say anything regarding military relocation, you can negotiate with your former spouse to change the order if necessary. Please note that:

• Such agreements are usually governed by individual state laws, not federal ones.
• Court follows the state custody laws when deciding to give you permission to relocate with your kid or deny it.
• In some states, until you’re permitted to move and keep custody, you might have to prove that moving would be advantageous for the child.
• Some states will outright deny relocation requests unless there is an urgent reason for doing so.

Individual State Laws Related to Military Child Custody

The Department of Defense established Defense-State Liaison Office to improve communication with policymakers regarding the needs of military members and their immediate families. Thanks to the actions of DSLO that separations that can be attributed to serving in the military do not affect child custody decisions.

All of the states presently have some kind of rules that protect the rights of military men and women in custody cases. States might offer different protections, but the most common provisions are:

1. Any kind of absence caused by serving in the military can not be used as a reason for changing a custody order that was agreed upon before.
2. No permanent orders altering existing custody arrangements should be entered while the custodial parent is unavailable due to military service.
3. Existing custody order before a military parent has become unavailable must be reinstated within a specified period of time when the service member parent returns. This rule can be overridden if there’s enough proof that it’s better to do so for the child. The parent who is present is the one who should provide proof.

In addition to shoring up your custody rights, 38 states will allow you, as a service member, to share your visitation rights with a close relative if you’re out of the country. We recommend seeking out legal counsel to understand better what laws apply to your case for best results.

Installation legal assistance offices

If you have family-related concerns, such as child custody, you can seek out legal assistance offered by your installation. Use Military INSTALLATIONS to do so. You can also look at Armed Forces Legal Assistance Legal Services Locator.