Members of the military bear the ultimate sacrifice for our country while they are deployed overseas. When a member of our military is going through a military divorce the emotional and mental burdens that service members face on the battlefield should not be compounded by custody disputes at home. Therefore, it is important for service members to know that their deployment status can affect the custody of their children in advance.
Service members often make the mistake of believing the military’s Family Care Plan controls custody issues during deployment. While it is a good idea to file the plan with the your service branch, it is not the same as a court order, and your ex-spouse may still petition a court for custody while you are deployed.
The Service members Civil Relief Act (SCRA) governs the general legal rights of a deploying service member. Under the SCRA, legal proceedings, including custody proceedings, are stayed when military service materially affects a service member’s ability to participate in the proceedings. However, the stays under the SCRA are mandatory only for the first 90 days after deployment, and issues of child custody and visitation are governed by state law.
Under section 3047 of the California Family Code, a parent’s absence or relocation due to mobilization in support of combat or military deployment out of state is not enough, by itself, to justify a modification of a custody order. However, if the military assignment requires a custodial parent to move a significant distance from his or her home or otherwise has a significant effect on his or her ability to use custody or child visitation rights, the order can be modified. If a custody order is modified for those reasons, the modification of the custody order will be considered temporary, and the modified custody order will change back to the original order upon the service member’s return unless the court determines it is not in the best interests of the child.
Additionally, a service member that is deployed can have their divorce attorney file legal papers asking a court to grant visitation rights to a step-parent, grandparent, or other family member. A court can grant these visitation rights if there is a pre-existing relationship and bond between the family member and the child such that visitation is in the child’s best interest, the visitation will help the child’s contact with the deployed parent, and the visitation balances the interest of the child in having visitation against the right of the parents to use their parental authority.
If you are a service member currently deployed or facing deployment in the near future, and you are concerned about how deployment will affect your child custody rights, contact us to speak with an experienced and dedicated Los Angeles child custody attorney today.
