Child Custody When One Parent Is In the Military

Child custody & visitation issues for military members are compounded by uncertainty about future deployments.

By , J.D.

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.

Parenting Plans and Family Care Plans

All divorcing parents should have a parenting plan describing how they will share time and care of their children after the divorce. If you are in the military and uncertain about where you'll be deployed and for how long, it's especially important, and it may be practical for you to develop alternate parenting plans for various possibilities. For example, if the service member might remain at a base that's close to where the children live, prepare a plan that calls for visitation consistent with expected free time for that parent.

At the same time, prepare a plan that you'll implement if the service member is deployed overseas or transferred farther away. Communication is really important -- often service members don't know exactly what's going to happen, but it's important to convey to the other parent all the information that is available, and make contingency plans that will cover your family whatever happens.

Where only one parent is in the military and the parents have joint custody, the civilian parent will generally take care of the child when the service member is unavailable. When the military parent has sole custody, however, many states consider a transfer of custody to the other parent to be a change of custody, and 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.

Who Must Have a Family Care Plan?

The military has rules for situations in which a child's sole caretaker, or both caretakers if there are two parents, might be deployed. A Family Care Plan is required in these situations:

  • 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 unable to provide his or her own care, including a disabled spouse or other family member.

A service member who is in any of these situations is required to advise the military immediately. The service member then has 60 days (active duty members) or 90 days (reserve members) to give a commanding officer a formal Family Care Plan.

What's in a Family Care Plan

The plan must set out what will happen to the service member's children if the service member is deployed or must be absent, whether for the short term or for a longer period (31 days or more). 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 would care for the child, who must be a civilian at least 21 years old, along with a certification that the caregiver has all the necessary information to care for the child and 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, in some cases that will mean naming different caregivers for different situations. A short-term caregiver would most likely be someone living in the local area who could step in when the service member is away for a six-week training period or brief educational program. A longer-term caregiver might live farther away but be more appropriate if the parent is deployed for a significant period of time. For example, a service member who has primary custody of a child might designate a relative who lives nearby as a short-term caregiver, but agree to send the child to live with the other parent across the country in the event of a long-term absence.

Information about the child's other parent. This must include written consent if the other parent is not named as caregiver.

Information about how the child will be supported financially during the service member's absence. This must include proof that the service member has 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. The military requires the plan to include details as small as how airline tickets will be paid for and how the caregiver and child will get to the airport. The plan also must include the arrangements for transferring care of a child from a short-term to a long-term caregiver if the service member is deployed with very little notice.

The name of the person the service member wishes to take custody of the child in the event of the service member's death. If there's another legal parent, that person will automatically take custody in almost all cases, but if you believe that's not appropriate -- for example, the other parent doesn't have visitation because of abuse or has abandoned the child -- you would designate another person and include the reasons for doing so.

For More Information

To learn more about Family Care Plans, the service member can ask a supervisor or commander for resources or go to a Legal Assistance Office or Family Support Center on base (if there is one). There's a great deal of detailed information at MilitaryOneSource; search "family care plan."

Excerpted from Nolo's Essential Guide to Child Custody & Support, by Emily Doskow.

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