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Child Custody Considerations for Members of the Military

Many service members have custody of, or visitation rights with, children whose other parent is not the service member’s current spouse. Absences due to military service can undermine and disrupt existing arrangements, creating stress on parents and children. Military service can significantly influence child custody issues. Learn what processes and protections are available to help you with the impact of deployments and moves on your current arrangements. Get information about:

  • Family care plans
  • Custody issues related to relocation
  • Your rights under the Servicemembers Civil Relief Act
  • Individual state laws related to military child custody
  • Installation legal assistance

Here are some things to consider when dealing with child custody issues.

Family care plan

Before you deploy or relocate, prepare a family care plan that describes who will provide care for your children financially, medically and logistically if you are away due to military duty. Read “How to Create a Family Care Plan for Caregivers” to learn more about setting up a plan for your children.

Child custody issues related to relocation

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. Keep these things in mind:

  • Arrangements are generally subject to individual state laws, not federal laws.
  • State custody laws provide the basis for a court’s determination when you request permission to relocate with your child.
  • Some states may require you to show how a move will benefit the child before approving the request to move and retain custody.
  • Other states may prohibit any relocation without compelling circumstances.

Your rights under the Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act protects your legal rights when you’re called to active duty. The act applies to:

  • 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 a stay or postponement of court or administrative proceedings if your military service materially affects your ability to proceed in the case
  • Get an automatic stay of 90 days in the proceedings when you request this protection in writing

Any additional delay beyond the 90-day stay is given at the discretion of the judge, magistrate or hearing officer.

This protection does not apply to any criminal court or criminal administrative proceedings. If your spouse attempts to change the child custody status while you are deployed, you can invoke your rights under the SCRA to postpone the hearing.

Individual state laws related to military child custody

Through the Defense-State Liaison Office, the Department of Defense partners with states to educate policymakers and others about the needs of military members and their families. One issue DSLO successfully addressed ensures separations caused by military duty do not determine child custody decisions.

Currently, all 50 states have at least one meaningful provision that protects the rights of service members in custody cases. States vary in terms of the protections offered, all have one or more of the following provisions:

  1. Past, current or possible future absences due to military service should not serve as the sole basis for altering a custody order in place prior to the absence.
  2. No permanent orders altering existing custody arrangements should be entered while the custodial parent is unavailable due to military service.
  3. The custody order 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.

Installation legal assistance offices

For assistance on family and domestic relations, including child custody, contact your installation’s legal assistance office using MilitaryINSTALLATIONS or find help through the Armed Forces Legal Assistance Legal Services Locator.

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