FindLaw KnowledgeBasePublished: 2012-04-10
Long-term deployments seem to have become a way of life for today's military personnel. There is no doubt that extended and repeat tours in theater have affected military marriages, leading to a rise in military divorce and related child custody and support issues. The good news for servicemembers in the Army, Navy, Marine Corps, Air Force and National Guard is that a new bill was introduced in Congress that would protect deploying parents from losing custody rights simply because they were called away to serve their country.
According to America's Promise Alliance, over 1.9 million children have at least one parent in the military and there are over 75,000 single parents in the military. When a custodial parent deploys or is stationed at a location that does not allow dependents — an 'unaccompanied' tour — the military encourages parents to establish a family care plan detailing who will care for their child(ren), including notifying the non-custodial parent, while they are unable to do so. For those who have a shared custody arrangement, the non-custodial parent may become the custodial parent while the other is deployed.
Not-So-Good News After Returning Home: Losing Child Custody
Unfortunately, the deployment of a custodial parent has been used as a reason to change a custody agreement or to deem a deploying parent unfit in courts across the United States. Upon returning from deployment, mobilization, temporary duty or an unaccompanied tour, non-custodial parents have used the absence as grounds to challenge an existing custody arrangement.
But, 63 members of the House Armed Services Committee are working to ensure that fulfilling the obligations of military service will no longer be used against military parents. Deploying for months or years away from family is difficult as it is, without adding in legal problems related to child custody.
The proposed federal legislation would bar courts from using a military deployment against a parent, whether to change an existing arrangement or to favor a non-deploying parent when initially establishing a custody arrangement. Currently, those who are deployed can delay a custody proceeding under the Servicemembers Civil Relief Act, but the SCRA does not completely bar a change in custody when the custodial parent is away on duty.
"This legislation would ensure that being deployed, or the possibility of [being] deployed, is not used against them [service members] when child custody decisions are made by the courts," said Representative Mike Turner of Ohio. He hopes that the proposed changes will mean that military personnel will no longer "have to live with the constant fear that their custody rights as parents could be in jeopardy due to their service."
Turner's battle for child custody protections for military servicemembers started several years ago when a Captain in the Kentucky National Guard lost custody of her daughter after returning from an 18-month mobilization. It took two years and $25,000 of legal custody battles for the Captain's custody rights to be restored.
North Carolina's Protections For Deployed Custodial Parents
For servicemembers stationed at one of the six military bases throughout North Carolina — Pope Air Force Base, Seymour Johnson Air Force Base, Fort Bragg, Camp Lejeune, MCAS Cherry Point and MCAS New River — the state may offer additional child custody protections during deployment, mobilization or temporary duty. When a military parent is deployed, North Carolina allows the court to issue a temporary custody order, effective only during the custodial parent's deployment, that must expire within 10 days of the parent's return.
North Carolina law also prohibits judges from considering deployment as a factor in a determination of change of circumstances if a motion is filed to transfer custody from the servicemember. A deploying or mobilizing servicemember can also request an expedited hearing prior to leaving on military duty to determine child custody issues.
A child custody attorney in your area can work with you to protect your custody rights through and after a deployment. Until the proposed federal legislation becomes law, military parents should be aware that, although unfair, deployment can affect child custody regardless of whether you currently have sole or joint custody over your child(ren) unless a state's laws, like North Carolina, offer additional protections.