What You Need To Know (And Do) If You Are A Military Parent With Custody

21 November 2014
 Categories: , Blog


If you're in the military, and you have custody of your child, what happens if you are deployed? Will you lose custody of your child? Read more to learn what laws protect you, and what you should do if you are faced with this situation.

What Should You Do To Protect Your Custody Rights?

You should have a parenting plan in place that addresses the issue of your deployment before you are ever faced with that situation. Most importantly, you want to address your right to regain custody of your child from his or her other parent or temporary caregiver once you are no longer deployed.

Present that plan to the court, and ask the judge to make a ruling about the plan, and specifically about your right to regain custody of your child once you are no longer deployed.

Having that order in place can drastically reduce the chances that your child's other parent or guardian can retain custody once you've returned from active duty.

What If Your Child's Other Parent Or Caregiver Files For Change Of Custody While You're Deployed?

Unfortunately, there is really no such thing as a permanent custody order. Your child's other parent or guardian can request a custody change at any time. The only real question is about how the court will respond to that request.

If your child's other parent or guardian wants the court to grant him or her custody of your child, the Servicemembers Civil Relief Act (SCRA) provides you some protection against having the issue decided while you are deployed and unable to be present for a custody hearing.

Specifically, the SCRA grants you an automatic stay of 90 days of any court proceedings—but only if you ask for the stay in writing.

After that first 90-day period, it's up to the court if another stay in proceedings will be allowed.

What Other Protections Do You Have?

More than 30 states have specific laws that also protect the custody rights of parents who are in the service. Those laws say that being deployed shouldn't equal losing custody of your child, and changes made while you are deployed need to be temporary.

However, the laws in each state vary, and the protections afforded military parents are uneven, which is why consulting with an attorney in your state is important. If you and your child's other parent reside in different states, the court will first have decide which state has control over the situation before the custody issue can be addressed, which further complicates issues.

What If You Don't Want Your Child's Other Parent To Have Custody?

You might prefer that a relative (such as an aunt or grandparent) other than your child's other parent have custody of your child if you are deployed. However, your child's other parent retains higher rights of custody than someone else, including your current spouse.

If you're in a situation where you feel that it would be harmful to your child for his or her other parent to have even temporary custody, you need to address the issue with the court before you are deployed. Ask the court to approve another plan.

If you're a parent that's in the military, you already know that having a family care plan is important. You should also contact an attorney, like those at Law Offices of Lynda Latta, LLC, who is knowledgeable of the custody problems that a military parent can face, especially if deployed, as soon as possible. Establish an ongoing relationship with him or her, so that you can respond quickly to any custody issue that arises once you are deployed.