Child Custody and Military Deployment
DISCLAIMER: The following is not meant to be legal advice. It offers alternatives,
tips, and resources for those with no means to hire an attorney. For a
more thorough understanding of the law regarding child custody, please
examine the applicable Sections of the Family Code, the applicable Rules
of Court, and the Local Rules applicable to the jurisdiction where your
case is filed.
Knowing how the court will handle current
child custody arrangements is of vital importance to many service members deploying
overseas on “unaccompanied tours.” Unaccompanied tours are
deployments in which dependents are not allowed to accompany the service
member. The following information will address how a deploying parent’s
deployment will affect a current child custody arrangement.
Temporary Modification to the Custody Order
If a parent receives deployment orders for an “unaccompanied tour,”
the court will likely award custody of the child temporarily to the other
parent. The court must ensure that its order ensures that the parent leaving
on deployment can maintain continuing and frequent contact with the child
during the time the temporary order is in effect. The temporary custody
order is made by the court without prejudice, and will be reconsidered
when the parent returns from deployment. The presumption is that custody
will revert to the arrangement in place before the temporary modification,
unless, of course, this conflicts with the best interests of the child.
It must be remembered, however, that the court only allowed a limited
inquiry into the best interests of the child before reverting back to
the previous custody arrangement. The military parent’s absence
to fulfill their duties is not a legitimate reason to justify changing
the original order.
Visitation by Deploying Parent’s Family with the Child
A parent who leaves to serve unaccompanied tours may go several months
without being able to visit with his or her child. A deploying parent’s
family members may, in some circumstances, be granted visitation rights
allowing them to see the child while the parent is away on duty. The deploying
parent may file a request before deployment asking that visitation rights
be granted to a member of that parent’s family. To do this, the
following requirements must be fulfilled:
- The court must determine that there is a pre-existing relationship between
the child and the family member that has resulted in a bond.
- Visitation with the family member will aid in the child’s contact
with the deployed parent.
- The non-deploying parent’s right to exercise parental authority is
outweighed by the child’s best interest in having visitation with
the family member.