Military Service and Child Custody

In many ways, the process of creating a custody agreement is much the same for military parents as for civilian parents. The parties must make the same decisions using the same factors and place the children in the home that will serve their best interests. But military parents must also plan for the unique challenges military service—especially deployments and relocations.

This article outlines what military parents should know about how military service impacts child custody arrangements. Learn more about:

• Single parents joining the military
• How enlisting in the military impacts child custody agreements
• Federal and state protections for military parents
• Drafting a Family Care Plan
• And more

Military Deployment and Child Custody Agreements

Under normal circumstances, a parent cannot simply remove a child to another state without violating the custody order or child relocation laws. But, military parents are aware of the possibility of deployment or moving out of state and can include custody or visitation provisions in the event of deployment.

Even so, deployment can complicate custody arrangements due to extended absences. Courts may implement temporary modifications to custody agreements during deployment. It is crucial to have a detailed family care plan in place to address these situations.

Military parents should discuss these possibilities with their family law attorney. An experienced attorney can recommend the best way to proceed.

Will I Lose Custody of My Child If I Join the Military?

Enlisting in the military doesn’t necessarily mean you’ll lose permanent custody of your children. But, joining the military can temporarily affect some aspects your custody rights or visitation schedule. The impact of your enlistment on your custody arrangement can depend on several factors, including:

• Which branch of the military you join
• The length of your basic training or boot camp
• The location of your assigned military base

Members of the military can still effectively co-parent and have meaningful and equitable child custody arrangements. But, joining the military is a decision that impacts all areas of your life, including your family life. It is important to understand how military service will affect your custody arrangements before you enlist.

Ultimately, courts use the “best interests of the child” standard when making custody determinations. While military service impacts some components of this standard, it doesn't necessarily put a parent at a disadvantage. Courts look at multiple aspects to ensure the child's well-being.

In the eyes of the law, the fact that one parent is in the military should not have a negative impact on custody arrangements. Under the “best interests of the child” standard, the court will aim to place children in the custody situation that prioritizes their safety, health, and well-being. If it’s best for the child to be with the military parent, then the court will use use that assessment to inform their custody determination.

Despite the possibility of deployment, the court doesn’t inherently view military parents as unsuitable primary caregivers. But the court will likely assess how disruptive a deployment could be to the child. Custody cases for military parents are unique and a family court judge will assess various factors—including the parent’s military duties—before making a custody decision.

Can Single Parents Join the Military?

Under the military’s current policy, a single parent who is the custodial parent for their children cannot join active duty military. To join active military duty, a single parent must petition the court for a custody order that grants temporary parental rights to another adult (often a family member or grandparent).

But, single parents can join the Reserves without giving up custody as long as they complete a family care plan.

Single parenting and military eligibility can be nuanced. For example, a single father without full custody of his children may join active duty military service. But, the father must first sign an affidavit stating they do not have custody or child support obligations.

Custody orders also cannot conflict with the needs of the military. This can occur if a custody order includes restrictions on taking the child outside of the state without the other parent’s consent. This would contradict the necessity to relocate or deploy as part of military service.

Federal Legal Protections for Military Parents

The Servicemembers Civil Relief Act (SCRA) is a federal law providing legal protections for military personnel. Specifically, the SCRA ensures military service does not unfairly disadvantage a parent in legal proceedings, including custody cases. For example, a deployed parent can request a temporary delay of custody proceedings to prevent unfair judgments due to their absence.

Courts are generally required to consider the unique circumstances of military life when making custody decisions.

State Laws and Child Custody for Military Servicemembers

Each state’s child custody laws have provisions that govern the parental rights of military members. These measures ensure that absences due to military duties do not solely determine custody decisions. While protections vary by state, common provisions include:

• Military-related absences should not be the only reason for changing a pre-existing custody order.
• No permanent custody changes should be granted while the custodial parent is absent due to military duty.
• The original custody order should be reinstated upon the military parent's return, unless it is no longer in the child's best interest. The other parent has the burden of proof in the custody case that the previous order is no longer in the child’s best interest.

Additionally, 38 states allow servicemembers to delegate their visitation rights to another person during deployment.

Military Service and the Family Care Plan

Single parents in the military and families where both parents are in the military must create a family care plan. This plan describes what will happen to their children (or any other dependents) in case of deployment. The family care plan must name a short-term caretaker and a long-term caretaker. It also must include provisions on caring for the child.

Short-Term Caretaker

This caretaker is close to the base and can be contacted anytime to care for the children. The short-term caretaker cannot be a member of the military, but can be a military spouse.

Long-Term Caretaker

This caretaker cares for dependents in case of a long-term deployment. The long-term caretaker doesn’t need to be local but cannot be a military member.

Care Provision Details

These are instructions on how to care for the military child. Care provision details can include:

• Bank account numbers and passwords
• Instructions for how to transport the child to the caretakers' homes
• Medical procedures necessary for the child
• Prescription medication schedules
• Other details to ease the transition to the child's new home

Some plans must also include any necessary powers of attorney. This information is necessary so caretakers can act on behalf of the parents.

Reviewing and Updating the Family Care Plan

The family care plan must be reviewed by the service member's commanding officer and updated annually. New plans are also required when a service member:

• Welcomes a new child into the family
• Becomes a single parent either through death or divorce
• Experiences a situation where the service member's spouse becomes unable to care for the dependents for any reason

All caretakers must sign the plans each time they are certified.

In some situations, the child’s non-military parent must sign the family care plan to show their consent. This is required if all of the following are true:

1. The servicemember is the primary caretaker of the child
2. The servicemember lives apart from the child's other biological parent
3. The servicemember does not name the child’s other parent as a caretaker

If the other parent does not consent, a court order may be necessary to certify the plan. Because of this, many family law attorneys recommend incorporating the family care plan into the custody order to avoid unnecessary hassle.

Family care plans should not conflict with any other legal documents, including the service member's:

• Estate plan
• Military Divorce decree
• Custody order

A military attorney or family law attorney can review your documents for potential conflicts. An attorney can also recommend changes to ensure future deployments cause minimal disruption to your custody agreement.

Legal Help for Military Parents With Child Custody Issues

While joining the military can affect child custody arrangements, it does not automatically result in losing custody rights. But, consulting with an attorney with expertise in custody laws is can help you understand your legal rights as a military parent. An attorney can provide valuable legal advice, as well as help protect your rights and ensure your child’s best interests throughout the process.

Contact a local family law attorney today to learn how they can help your family.

Military legal assistance offices can also provide guidance and support for military families. Additionally, organizations like the Military OneSource offer resources for military families facing legal challenges.