Custody Rights of Deployed Soldiers

By Heather Frances J.D.

Military couples face unique challenges when divorcing and dealing with custody. Though courts typically aim to provide a stable environment for children, achieving stability in a military household, where a parent frequently moves and may deploy, can be more challenging. Thus, when a divorcing parent is deployed, special laws apply to custody arrangements with his children.

Servicemembers Civil Relief Act

Military members are protected by the Servicemembers Civil Relief Act, which addresses a wide variety of civil law topics, including how a military member can be served with legal paperwork. When a military member is sued, even for divorce or custody, he can request a stay, or postponement, of the case if he cannot prepare for the case or attend hearings due to his military duties. The military member must send the court a statement saying that his military duties prevent him from appearing and giving a date when he expects to be available. He must also send a letter from his commanding officer explaining that his military duty prevents the member from appearing, and that the commanding officer will not authorize leave for the member to appear in court. If the military member provides these documents, the court must stay the case for at least 90 days and can postpone it for longer. In some deployment situations, such a stay can give the member time to get to court.

Best Interests of the Child

Courts generally make custody determinations based on the best interests of the child. Courts are not allowed to automatically assume a child would be better off with his mother. Instead, they must consider various factors set by state law before creating a custody arrangement. The child's parents also can create a arrangement, sometimes called a parenting plan, to split custody. Such custody arrangements can address what happens when one parent deploys. For example, the parents could agree to allow the child to spend more time with the deploying parent when he returns to make up for the lost time while he was overseas. Ultimately, however, courts only approve a custody arrangement if it appears to be in the child's best interests.

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Changes to Custody

No federal law prevents a parent from bringing a custody case into court while the other parent is deployed. Sometimes, this results in a custody arrangement being changed while one parent is deployed and unable to attend the hearing. States such as Colorado, Nevada, North Carolina, North Dakota and Pennsylvania have passed laws to provide additional protection to military members who risk losing custody of their children while deployed. Such laws can prevent a parent from seeking to change custody orders while the other parent is deployed, but courts may be able to enter temporary custody orders while one parent is deployed if the order is in the best interests of the child. When the deployed parent returns home, state law can reinstate the custody rights he had before he left.

Court Appearances

State laws also can make it easier for the deployed parent to participate in the court's decisions. For example, Pennsylvania law prohibits courts from using a deployed parent's failure to appear in court as the sole reason for modifying a custody order. Deployed parents can attend a hearing by telephone, video conference or over the Internet, while deployed anywhere in the world. State law also may provide for a quicker hearing process to get custody matters resolved before a parent deploys.

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Child Custody Laws Concerning Deployed Parents
 

References

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