Child Custody Considerations for Members of the Military

A parent’s military service can present child custody issues. Deployments and frequent relocations may require service members to give up custody temporarily. And upon return, service members sometimes face difficult custody battles. This article can provide you with some things to consider when dealing with child custody issues.

Family Care Plan

A Family Care Plan is a collection of documents that describes who shall provide care for your children, as well as disabled or elderly family members who are dependent on you for financial, medical, or logistical (e.g., food, housing, transportation) support if you are away due to military duty (training exercises, temporary duty, or deployments). The plan lists the legal, medical, logistical, educational, monetary, and religious arrangements for family members, addresses all foreseeable situations, and must be detailed enough to provide for a smooth transfer of responsibilities if you are away. The plan also includes explicit details for who will have short-term custody in case of no-notice deployment, as well as who will provide long-term custody if needed.

Each of the Services has a form for ensuring that you have been counseled about a Family Care Plan. Although all service members are highly encouraged to develop a plan, there are some instances in which you are required to have a plan and to update it annually. You are required to have a Family Care Plan if you are:

  • a single parent,
  • a member of a dual-military couple with dependents,
  • married with custody or joint custody of a child whose non-custodial biological or adoptive parent is not your current spouse, or
  • primarily responsible for dependent family members.

Child custody issues related to a relocation

If you are a parent who is separated or divorced from your child’s other parent, your relocation or permanent change of station (PCS) may have a drastic impact on the custodial arrangement. Child custody arrangements are generally not subject to federal law, but rather, on individual state laws. These laws provide the basis upon which courts make determinations when you request the court’s permission to relocate with your child to another state. Some states will require you to show how such a move will benefit your child before approving your request to move (and retain custody). In some states, courts will prohibit any relocation without compelling circumstances, meaning you would lose custody if you move.

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.

Your rights under the Servicemembers Civil Relief Act (SCRA)

The SCRA helps protect your legal rights when called to active duty. It applies to active duty members of the regular forces, members of the National Guard when serving in an active duty status under federal orders, members of the Reserve called to active duty, and members of the Coast Guard serving on active duty in support of the armed forces. In regards to child custody issues, the SCRA provides you one main protection: a stay of court and administrative proceedings.

Under SCRA, 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. SCRA provides for an automatic stay of ninety days in these proceedings when you request this protection in writing. Any additional delay beyond the mandatory ninety-day stay period is awarded at the discretion of the judge, magistrate, or hearing officer. This protection does not apply to any criminal court or criminal administrative proceedings. Should your spouse attempt to change 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 USA4 Military Families initiative, the DoD is partnering with the states to support military families.  USA4 Military Families seeks to engage and educate state policymakers, not-for-profit associations, concerned business interests, and other state leaders about the needs of military members and their families. One issue currently addressed by the initiative is to ensure that deployment separation does not determine child custody decisions.

At present, forty-two states have enacted laws that address some aspect of the difficulties facing parents who temporarily must give up custody of their children or who must forgo visitation when separated from their families for an extended period of time during mobilizations, temporary duty, or deployment.  More information on the initiative to ensure deployment separation does not determine child custody decisions can be found on the USA4 Military Families website.

Installation legal assistance offices

For more assistance on divorce proceedings or to file claims for support, please contact your local legal assistance attorney. You can find the contact information of your local legal assistance office through the MilitaryINSTALLATIONS application, under the program/service “Legal services/JAG” or through the Armed Forces Legal Assistance Legal Services Locator application.