Child Custody When One Parent Is in the Military

Being in the military shouldn't hurt your ability to have custody of your child, but it does mean you'll need to take steps to prepare for a possible deployment.

By , Attorney · UC Berkeley School of Law
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Sharing parenting responsibilities after a divorce or separation can be challenging for anyone. For military service members, the issues can be complicated by uncertainty about future deployments overseas or stateside assignments.

The good news is that laws are in place to protect military parents' child custody rights. This article discusses the steps federal and state governments have taken to ensure that military parents aren't penalized for serving their country when it comes to child custody. Also, read on to learn about military rules that require most single and divorced parents to have family care plans in place in the event they are deployed or have to travel.

How Custody Is Determined When One Parent Is in the Military

When parents divorce—regardless of whether one or both of them is in the military—one of the matters that must be decided is custody of the children.

The document that outlines custody of the children as well as visitation rights generally is called a "parenting plan." When parents can't agree on a parenting plan, the court will evaluate what it considers to be in the best interests of the child, and incorporate a court-drafted parenting plan into the divorce decree. The divorce decree (with its incorporated parenting plan) is enforceable like any other court order.

Who Gets Child Custody in a Military Divorce?

Most of the time, courts try to give parents joint custody of their child. But when there's a clear reason to avoid joint custody—perhaps when a parent has addiction problems or has abandoned the child—courts won't hesitate to award a parent sole custody if it's in the child's best interest.

The rules are no different for military parents: A parent who's in the military can get sole (or full) custody of a child when there's a showing that the arrangement is in the child's best interests. Also, as discussed below in Will I Lose Custody if I Join the Military, courts are not allowed to deny custody to a member of the armed services simply because of their status.

Often, though, parents are able to come to an agreement about custody. Parents (perhaps with the help of a divorce mediator or lawyer) draft a proposed parenting plan and present it to the court. As long as the court believes that the proposal is in the best interests of the child, it will incorporate the plan into the divorce decree and make it an order.

Child custody orders can be modified when there is a significant change in circumstances, such as when one of the parents needs to move out of state or the child's school schedule drastically changes. Modification of child custody can happen only by order of the court. One or both parents must petition the court for a modification; the court won't make changes on its own.

Military Family Care Plans

If you're a divorced parent who's in the military, you'll have a court-ordered parenting plan in place, but your parenting plan might not address what happens if you're deployed. That's why many military parents have a military family care plan in place. In fact, military regulations might even require you to have a family care plan.

A military family care plan won't take the place of your court-ordered parenting plan. Instead, it complements it, and goes into effect only when necessary due to your absence.

Who Needs a Military Family Care Plan?

Every branch of the military has rules for situations in which a child's sole caretaker, or both caretakers if there are two parents, might be deployed.

Although you'll need to find out the exact requirements for your branch of the military, family care plans generally are required when:

  • A service member is a single parent who has custody of a child under age 19, or shares custody with another parent to whom the service member is not currently married.
  • Both parents are service members and have custody of children under 19. (Both parents must sign the same family care plan.)
  • A service member is the sole caretaker for a child under 19 or an adult family member who's dependent on the service member for care, including a disabled spouse or other family member.

A service member who is in any of these situations usually must advise the military immediately. Your installation's legal office can provide you with more details regarding what's required and when you must submit a Family Care Plan.

What's in a Military Family Care Plan?

Your family care plan will appoint a caregiver who will take care of your children and keep your children's daily lives running smoothly when you are away. When only one parent is in the military and the parents have joint custody, the civilian parent is usually the appointed caregiver.

When the military parent has sole custody, however, some states consider a transfer of custody to the other parent to be a change of custody. Depending on state law, changing custody in this manner might affect the military parent's custody rights, so it's not uncommon for the court to allow the military parent's new spouse or another family member, like an aunt or uncle or grandparent, to take over as the child's guardian during deployment if the military parent is the sole custodial parent.

Your family care plan must set out what will happen to your children if you're deployed or must be absent. Specific requirements may vary among different branches of the service, but the basics—described here—are the same.

  • Caregivers and contact information. The plan must contain the name and contact information for the person who will care for your child. In most situations, the caregiver must be a civilian at least 21 years old, and you'll need to show proof that the appointed caregiver has accepted the responsibility. The plan must also name an alternate caregiver in case the primary person isn't able to do it when the time comes.

Because the plan must provide for both short-term and long-term absences, that might mean that you have to name different caregivers for different situations. A short-term caregiver would most likely be someone living nearby who can quickly step in when you're away. A longer-term caregiver might live farther away but be more appropriate if you're deployed for a significant period of time. For example, if the other parent lives across the country, you might designate a relative who lives nearby as a short-term caregiver, but agree to send the child to live with the other parent if you have to be away for a long time.

  • Information about the child's other parent. And, if the appointed caregiver isn't the other parent, you usually need to have the other parent's written consent to the appointment of the caregiver.
  • Information about how the child will be supported financially during your absence. This typically includes proof that you've provided powers of attorney to the caregiver or other responsible adult. (Powers of attorney are documents that allow another person to deal with financial matters on your behalf.)
  • Information about transporting family members if the family care plan goes into effect. You'll likely have to include details, such as how airline tickets will be paid for and how the caregiver and child will get to the airport. The plan also must include arrangements for transferring care of your child from a short-term to a long-term caregiver if you're deployed with very little notice.
  • The name of the person you wish to care for your child in the event of your death. If there's another legal parent, that person will almost always automatically take custody upon your death. However, if you believe that's not appropriate—for example, the other parent doesn't have visitation because of abuse or has abandoned your child—you would designate another person and include the reasons for doing so.

Additionally, because your family care plan can't take the place of or alter your court-ordered parenting plan, you'll need to make sure that it takes into account the rights of the other parent and doesn't contradict any of the terms in your parenting plan.

Will I Lose Custody If I Join the Military?

If you have custody of your child and are considering joining the military, one concern you might have is whether moving for the military or a deployment might affect your custody rights. In general, the fact that you are in the military can't be used as a sole reason to deny you custody. However, the extent to which your military service can affect a court's custody order depends on state law.

Uniformed Deployed Parents Custody and Visitation Act

Many states have adopted the Uniform Deployed Parents Custody and Visitation Act (the "Act"), a law drafted to protect the custody interests of parents who are in the military. Section 107 of the Act states that a court may not consider a parent's possible future deployment "in itself" in determining the best interests of the child, but may consider any significant "impact" on the best interest of the child.

Under the Act, a court can't automatically count a possible deployment against a parent seeking custody, but it could consider it if when deployment could significantly impact the child's well-being. The Uniform Law Commission tracks which states have adopted the Act.

Nearly all states that haven't adopted the Act have some other law on the books that addresses military service and child custody issues. As a general rule, these laws, like the Act, have the goal of not penalizing a parent for being an active member of the military. However, the reality is that courts need to make decisions based on the best interests of the child.

Most of the time, entering or being in the military won't mean that you're denied custody. Unless there's a good reason to deny custody, courts generally try to ensure that a child has the benefit of having as much time with both parents as possible.

How the SCRA Can Affect Custody Proceedings

The Servicemembers Civil Relief Act (SCRA) is a federal law that provides for special treatment in court proceedings for those who are are on active duty in the U.S. Armed Forces. It can affect your child custody case in significant ways, including by:

  • requiring that custody proceedings be delayed (or "stayed" in legalese), when a servicemember parent applies and provides proper documentation, until the parent can arrange to be at the hearing
  • providing protection for servicemembers against default judgments, so that the judge will not issue a custody order without the absent parent's participation, and
  • providing that a judge may not consider a parent's military deployment as the only factor when deciding whether to modify custody.

(50 U.S.C. §§ 3931, 3932, 3938(b) (2023).)

Which State Controls Custody Cases When a Parent Is Deployed Overseas?

One issue that comes up often in military cases is which state has jurisdiction (legal authority) over decisions involving the children. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, which has been adopted in almost all U.S. states and territories), sets out rules about jurisdiction for children, including servicemembers' children. Generally, a state's courts will have jurisdiction to rule on custody matters if the child has lived in the state with a parent for the past six months. But there are complicated exceptions to this rule.

These rules can be hard on servicemembers, especially those who are deployed overseas. If they stay away longer than six months, the other parent can establish residency in a state where the servicemember has no connections, and the rest of the case will have to be handled there. A good idea when you are deployed overseas is to ask the other parent to sign an agreement about where the child will live and where the permanent home is. Without an agreement, you may end up in a court battle about jurisdiction, which will almost certainly require an attorney's help.

How to Get Child Custody Help When You're in the Military

As a military parent, the more you can learn about the child custody laws and regulations that apply to your situation, the better prepared you'll be to advocate for your rights and pivot quickly in the event you're deployed. Because you're going to be dealing with both state laws and the rules that apply to your branch of the military, it's a good idea to seek help with the process—this isn't something you can easily DIY.

Your first step might be to ask a supervisor or commander about available resources. Alternatively, if your base has a Legal Assistance Office or Family Support Center, either of these would be a good place to start. You can search for resources online based on your current military installation. Military OneSource also has a great deal of detailed information: search for "child custody" or "family care plan."

If you're dealing with a particularly contentious or complex child custody matter in a state court, it's a good idea to consult with a local family law attorney. Look for one who has experience assisting members of the military—you have special considerations that not all family law attorneys will have dealt with. You could search online for a military divorce or family law attorney or ask your Legal Assistance Office for a referral.

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