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How Your Military Service Affects Your Child Custody

Child Custody for Military Members

Most members of the military serve because they want to protect the future and safety of the ones they love. But what happens when a divorcing parent is in active military service? While they are working to protect the future of the nation's children, what happens to their own?

Divorce or separation and military deployment are very different kinds of stresses. If you're a deployed service member, you shouldn't have to bear the additional stress of fearing you'll lose custody of your kids. Knowing how your deployment status might impact your California custody matter can reassure you and help you plan.

Here are some of the questions service members often have about how their service affects custody of their children.

I have a Family Care Plan in place. Isn't that enough?

Divorce and custody are governed by state law. While all parents, especially divorced and separated ones, should have a Family Care Plan in place and filed with your branch of the military, it does not have the legal effect of a court order. If your spouse petitions a state court for custody during your deployment, the court may consider your Family Care Plan, but is not bound by it.

What about the Service Members' Civil Relief Act (SCRA)?

The SCRA is based on the principle that you shouldn't have to worry about litigation while you're serving your country in the military. The SCRA grants you a stay of legal proceedings, including divorce or custody proceedings, when your military service “materially affects” your ability to participate in them. A stay means that the proceedings can't move forward for a period of time. How the SCRA operates for you depends on whether or not you have actual notice of a legal action.

The SCRA applies to all service members on active duty, as well as to Reservists and the members of the National Guard while they are on active duty. SCRA protection is effective as of the date you begin active duty and terminates within 30 to 90 days after your date of discharge from active duty.

This may sound great; a custody action against you could be delayed for months or years. But remember that during that time, your children are establishing bonds and a routine with their other parent. As unfair as it may seem to you, when you do go back into court, the judge may feel it's in the children's best interests to remain in their current situation.

Does California law protect my interests at all?

Yes. California Family Code Section 3047 specifically states that military service members should not be “penalized for their service by a delay in appropriate access to their children.” To this end, the Code states that activation to active military duty or temporary duty, mobilization in support of a military operation, or deployment out of state, is not, by itself, justification to modify a custody or visitation order.

Soldier Child CustodyIf you have sole or joint physical custody of your kids, and military orders require you to move a substantial distance from your residence or otherwise affect your ability to see or keep your kids, the court may modify the existing custody order as necessary. However, this modification is temporary and without prejudice, meaning it can be reconsidered on your return. In addition, that reconsideration includes a presumption that the custody order should revert to the one that was in place before. Your ex may present evidence to try to rebut that presumption, and show that returning to the custody order in place before your activation, mobilization, or deployment is not in your children's best interests.

Also, you can request that while you are away, your children have visitation with a grandparent, step-parent or other family member with whom they have a preexisting relationship. That family member can provide your child with an important connection to you while you're gone.

The interplay between federal law governing the military and California state law governing divorce and custody is complex. Your wisest move is to work with an experienced California family law attorney who regularly deals with military divorces and custody matters. At Shaffer & Associates, we deal with many military divorces and child custody matters for service members and their families at nearby Naval Base San Diego and MCAS Miramar. We invite you to contact Shaffer & Associates for a free consultation to learn how we can help protect your family ties while you protect your country.

Categories: Child Custody

San Diego Bar AssociationSection of Family LawCalifornia State Bar Family Law American Bar Association Avvo Clients' Choice 2014