Wednesday, October 14, 2009

Child Custody and Deployment

By CAPT Sam Wright, director, Servicemembers Law Center

I have received several e-mails and telephone calls about child custody issues related to the deployment of a parent with sole or primary custody of a child. You went through a contentious divorce with your ex-spouse, and the court awarded you primary custody of the child. But now you are being mobilized and deployed to Afghanistan. What happens to the child?

You want to hide from your ex-spouse and the court your impending mobilization and squirrel away the child to an undisclosed location, where your parents or someone you trust will care for the child during the deployment. This is exactly the wrong thing to do.

The court gave you primary custody of the child because the court found that arrangement to be in the best interest of the child, among the alternatives available at the time the court made that determination. The court retains jurisdiction to make a new “best interests of the child” determination whenever there is a material change in circumstances. Your deployment is most certainly a material change in circumstances.

You having primary custody was Plan A, approved by the court. You don’t get to decide on Plan B, the court does. Your ex-spouse is the other parent, and if he or she wants custody during your deployment, the court will most likely grant custody to the other parent, absent clear evidence of abuse or neglect by that other parent.

You should disclose to the other parent your impending mobilization as soon as you learn of it and discuss with the other parent the custody arrangements during your deployment. If you and your ex-spouse cannot agree on custody arrangements, you must go back to court for the court to decide the custody arrangement. Please see Law Review 0951, by Colonel John S. Odom, Jr. and myself.

2 comments:

Katherine said...

I had a child a year before I left for BCT and AIT for the PA Army National Guard, I had no custody order and no father on the Birth Certificate. She lived solely with me. When I returned home, my sister took me to court for temporary custody and got it based on a Loco Parentis, where the courts counted my active time of service against me. This began in June 2010 and I am still fighting for my child back.

ReserveOfficer said...

Katherine -- please call our Service Members Law Center at 202-646-7730 and we'll see if we can give you any useful information.