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Child Custody Considerations for Service Members and MilSpouses6 minute read • Jan. 31, 2022
Effective co-parenting should be the goal for service members who have custody of, or visitation rights with, children from a former spouse or partner. 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 both service members and military spouses when it comes to the impact of deployments and moves on current arrangements. Get information about:
- Family care plans
- Custody issues related to relocation
- Rights under the Servicemembers Civil Relief Act
- Individual state laws related to military child custody
- Installation legal assistance
- Child custody and domestic abuse
Here are some things both parents should consider when dealing with child custody issues.
Family care plan
Before deploying or relocating, service members should work with their co-parent, when possible, to prepare a family care plan that describes who will provide care for their children financially, medically and logistically if the service member is away on military duty. Read “How to Create a Family Care Plan for Caregivers” to learn more about how to set up a plan.
In situations where service members and their former spouses or partners are raising their children together, good co-parenting requires planning and teamwork, so make sure you are prepared.
Cooperation and planning, however, do not ensure that everything is going to run smoothly. The legal matters brought on by child custody considerations and divorce can lead to enormous stress for everyone. So it’s important to find the resources you need to reduce the emotional strain for you and your family..
Child custody issues related to relocation
If a service member’s custodial agreement is already in place and does not include a provision related to military relocation, both parents can work with the court to modify the order appropriately. Keep these things in mind:
- Child custody agreements are generally subject to individual state laws, not federal laws.
- State laws provide the basis and factors for a court’s determination when a service member requests permission to relocate with their child.
- Some states may require service members to show how a move would benefit the child before approving the request to move the child.
- Other states may prohibit any relocation of the child without compelling circumstances.
Rights under the Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act protects the legal rights of service members when they are 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 reserves called to active duty
- Members of the Coast Guard serving on active duty in support of the armed forces
- Dependents of service members
Under the SCRA, service members can:
- Obtain a delay, or stay, of court or administrative proceedings if their military service materially affects their ability to proceed in the case
- Receive an automatic stay of 90 days in the proceedings when requested in writing
Other things to note regarding SCRA protections include:
- Any delay beyond the 90-day stay is given at the discretion of the judge, magistrate or hearing officer.
- The protection does not apply to any criminal court or criminal administrative proceedings.
- If a spouse attempts to change the child custody status while a service member is deployed, the service member can invoke their rights under the SCRA to postpone the hearing.
Individual state laws related to military child custody
Currently, all 50 states have at least one meaningful provision in their child custody laws that protects the rights of service members in custody cases. These provisions help ensure that separations caused by military duty do not determine child custody decisions. States vary in terms of the protections offered, but all have one or more of the following provisions:
- 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.
- No permanent orders altering existing custody arrangements should be entered while the custodial parent is unavailable due to military service.
- 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, unless there is 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 they are deployed by allowing these rights to be delegated to another person. Since state protections vary, the best advice for service members is that they ask their attorney about the state laws affecting their case.
Installation legal assistance offices
For assistance on family and domestic relations, including child custody, service members can contact their installation’s legal assistance office using MilitaryINSTALLATIONS, or find help through the Armed Forces Legal Assistance Legal Services Locator.
Help is also available for divorced spouses of military members in dealing with these issues.
Child custody and domestic abuse
Navigating arrangements related to child custody can be additionally challenging for individuals who have a child in common with their abuser. This can be true for both service members and military spouses.
For help identifying your next steps, including recommendations for legal assistance and planning regarding safety, contact an installation domestic abuse victim advocate.
For spouses who have decided to leave an abusive relationship, FAP can help them determine if they or their children may be eligible for transitional compensation, a benefit that can help them move and get back on their feet. To be eligible:
- They must have been living in the home of, and married to, the service member.
- Their service member must have been convicted of a dependent-abuse offense.
- Their service member must have been either separated under a court-martial sentence, sentenced to a forfeiture of all pay and allowances by a court-martial for a dependent-abuse offense or administratively separated, at least in part, for a dependent-abuse offense.
Another resource for military spouses is the Uniformed Services Former Spouse Protection Act, which provides certain benefits to former spouses of military members. For more information, refer to this handbook for military families.
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