When a couple with children separates or divorces, they must negotiate or litigate child custody to determine when each parent will get to have physical custody of their child or children. But when a military parent serves on active duty, how does the family’s child custody arrangement work? A parent on active duty in the military may face the possibility of relocation around the country or deployment overseas. But what happens to child custody when a parent on active duty receives relocation or deployment orders?
How Deployment Affects Existing Custody Orders
A military parent’s deployment does not automatically change the family’s existing custody arrangement. Instead, either or both parents must file a motion with the state court that issues the current custody order to modify it. Couples can ask the court to grant a temporary modification of the custody order to cover an active-duty parent’s deployment, with the family returning to the existing custody arrangement once the active-duty parent returns from their deployment.
Military families can also negotiate the inclusion of a “deployment clause” in their custody order, which reassigns parenting time to a non-military parent or another family member (such as a military parent’s parents) during the active duty parent’s deployment, reverting to the original custody arrangement after deployment ends.
SCRA Protections in Custody Proceedings
Active duty parents who receive deployment orders enjoy certain legal protections under federal law for custody modification proceedings. Specifically, the Servicemembers’ Civil Relief Act allows a military parent who cannot attend custody proceedings due to deployment to request a stay of the proceedings, ensuring that courts cannot enter orders against a military parent by default due to their non-appearance. A court must grant at least one 90-day stay, and has discretion to grant further stays as necessary.
Can a Judge Use Deployment as an Adverse Factor?
Most states have laws that preclude judges from considering a parent’s active-duty military status or deployment as an adverse factor when deciding a custody order or a motion to modify an existing order. Courts typically disfavor efforts to use a military parent’s deployment to gain an advantage in custody proceedings. Furthermore, when a parent files a motion to modify custody to accommodate an active duty parent’s deployment, courts typically favor temporary modifications that end once the parent returns from deployment.
Crafting a Deployment-Ready Parenting Plan
Even when an active duty parent must deploy overseas or temporarily relocate for an assignment, the parenting plan can include provisions to allow the parent to maintain their relationship with their children. A temporary custody order accommodating a military parent’s deployment may grant the parent virtual visitation, during which the deployed parent has the right to speak with their children over the phone or on a video call. Custody arrangements can also give a deployed parent liberal texting or emailing privileges with their children. A temporary custody order may also continue after a parent’s return from deployment by granting extended parenting time to make up for lost time during deployment.
Military families negotiating or litigating a custody order can incorporate provisions for a military parent’s potential deployment to avoid the need for emergency litigation to change custody arrangements should a parent receive deployment orders.
Contact Our Military Family Law Attorneys Today for Guidance
After parents separate, arranging a parenting schedule can become more complicated if one parent serves on active duty with the military. Their duties can require them to move around the country or spend extended time overseas. Contact Patriots Law Group today for a confidential consultation with a military family lawyer to learn more about how child custody works with one parent on active military duty.