Child Custody Military Issues

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 My Child's Other Parent Is in the Military and Currently Has Our Child. But Legally, I Think I Have Custody or Visitation Rights. What Can I Do?

You should ask the company or battalion commander to investigate the parent’s legal obligations whenever you are in this situation. You will receive a report from the commander once they have completed an investigation.

Rule: Children Come First in Child Custody Laws

Child custody is one of the most important decisions a court often has to make in a family law case. The laws governing child custody are complex and vary from state to state. Custody rights for a child or children must be determined carefully since such decisions can profoundly impact the child for many years to come.

To determine child custody rights, child custody law places the child’s interests and background ahead of any parent’s personal preferences. This is known as the “child’s best interest standard,” which is the main standard for child custody cases. This means that courts will only make child custody decisions if they benefit the child.

Therefore, if a parent considers how to get custody of a child or become a custodial parent, they must prioritize the child’s best interests since that is what the courts will consider in custody hearings. Child custody is an important decision, and the more parents know about their child custody rights, the more efficient the process will be.

Considerations for Service Members Regarding Child Custody

Effective co-parenting should be their goal when service members have custody of or visitation rights to children from a former spouse or partner. Military service can disrupt and undermine existing arrangements, causing stress on parents and children.

Child custody issues can be significantly influenced by military service. Discover the processes and protections available for military spouses and service members to cope with the impact of deployments and move on with current arrangements. Learn more about:

  • Planned family care
  • Relocation-related custody issues
  • Servicemembers’ Civil Relief Act rights
  • State laws governing military child custody
  • Legal assistance during installation
  • Domestic violence and child custody

Family Care Plans

Military service members should prepare a family care plan with their co-parents before deploying or relocating. They know who will provide care for their children financially, medically, and logistically if they are away on military duty.

When service members and their former spouses or partners raise their children together, co-parenting requires planning and teamwork, so be well prepared.

However, cooperation and planning do not guarantee a smooth operation. Divorce and child custody matters can cause stress for everyone involved. You and your family need to find the resources to reduce emotional strain.

Relocation and Child Custody Issues

If the service member’s custody agreement does not include a provision related to military relocation, the parents can work with a court to modify the order. Here are some things to keep in mind:

  • State laws govern child custody agreements, not federal laws.
  • A court’s decision regarding a service member’s request to relocate with their child will be based on state laws.
  • Before approving a request to relocate a child, some states require that service members show how a move will benefit the child.
  • Other states may prohibit the relocation of a child without compelling reasons.

Rights Under the Servicemembers Civil Relief Act

If a service member is called to active duty, the Servicemembers Civil Relief Act (SCRA) protects their legal rights. It applies to:

  • Active-duty members of the regular force
  • Guard members on active duty under federal orders
  • Reserve members called to active duty
  • Active-duty Coast Guard members supporting the armed forces
  • Service members’ dependents

The SCRA allows service members to:

  • To obtain a delay or stay of court or administrative proceedings if their military service materially affects their ability to proceed with the case
  • Receive an automatic stay of 90 days in the proceedings upon written request

In addition, SCRA protections include:

  • A delay beyond the 90-day stay may be granted at the discretion of the judge, magistrate, or hearing officer.
  • Protection does not apply to criminal court or criminal administrative proceedings.
  • When a spouse attempts to change child custody status while a service member is deployed, the service member can invoke their SCRA right to postpone the hearing.

State Laws Pertaining to Military Child Custody

All 50 states have at least one provision in their child custody laws protecting service members’ rights. Separations caused by military duty do not affect custody decisions. The protections offered by states differ, but all have at least one of the following provisions:

  • Absences due to military service in the past, present, or future should not be used to modify custody orders before the absence.
  • There should be no permanent orders altering existing custody arrangements while the custodial parent serves overseas.
  • The custody order in place prior to the absence of a military parent should be reinstated within a certain time upon the parent’s return unless there is proof that the child’s best interests would be compromised. It should be the non-absent parent who bears the burden of proof.

Most states protect a service member’s custody rights and a service member’s visitation rights by allowing these rights to be delegated to another individual. Service members should ask their attorney about the state laws affecting their case since state protections differ.

Domestic Violence and Child Custody

Individuals who share a child with their abuser may find it even more challenging to navigate arrangements related to child custody. Both military spouses and service members may find this to be the case.

Changing Your Custody Agreement

You can work with the court and your child’s other parent to modify the custody agreement if it does not reference military relocation. There must be a compelling reason for moving the child. The move must also be beneficial to the child. Occasionally, frequent moves or deployments may require service members to temporarily relinquish custody. To learn about the processes and protections available to you, contact a military legal assistance attorney.

You are protected by the Servicemembers Civil Relief Act when the military orders you to deploy, PCS, or serve on active duty. The SCRA allows individuals to request a stay or postpone court or administrative proceedings (but not criminal proceedings) if military service interferes with their ability to appear in court. Contact a military legal assistance attorney for assistance.

While you are deployed, you can request a postponement of the hearing if the other parent attempts to change the child custody status.

Military life often involves deployments or relocations, but many free resources are available.

Follow these steps to minimize the impact on your children:

  • Seek legal assistance.
  • Create a family care plan.
  • Prepare for your newest transition in advance.

What if the Commander Discovers that the Military Parent Has No Legal Right to the Child?

Suppose the commander discovers that the military parent has no legal right to physical custody of the child. In that case, the commander will order the military parent to comply with the law and surrender the child to the person who has legal custody. There will be no force used to take the child; however, if the military parent refuses to comply, they may face serious consequences.

Do I Need a Lawyer for my Military Child Custody Issue?

You may want to consult with an experienced family lawyer due to the special circumstances. Speaking with a child custody lawyer can help you understand your rights and help you deal with the complicated legal system.

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