Custody Concerns for Military Couples

by Jul 9, 2021Child Custody

As if divorce isn’t difficult enough, when children are involved it can be much more emotional. And if one or both parents are members of the military, there may be additional complications.

Does the court favor the non-military spouse?

It’s important to know right from the start that the court cannot assume prejudice against a parent simply by virtue of being active duty military. The court’s primary task is deciding what is in the best interest of the child, and military status is not weighted for or against a parent.

What’s best for the kids?

This is what the court is tasked with determining. Whether it’s a military divorce or a civilian one, the court’s top priority is acting in the best interest of the children. 

One of the factors the court will consider is stability. All other things being equal, the court will give favorable consideration to the parent who is best able to maintain stability in the child’s life. The court will consider things such as:

  • Keeping the child in the same school
  • Allowing the child to maintain their extracurricular, church and social activities
  • The ability for the child to maintain relationships with grandparents, friends, or family
  • Keeping siblings together

However, stability is not limited to location or just keeping the child’s surroundings the same, and all other things are often not equal. Which parent has been the more stable influence in the child’s life? If the military parent has provided the child with a sense of stability and the other parent has not, the court may very well decide it’s better for the child to move with their military parent than to remain in the same school district with a less stable parent. It’s also possible that the non-military parent wants to move back home to be closer to their own family after a divorce, and the military parent would be the one who was best able to keep the child in familiar surroundings. 

If the custodial parent gets deployed….

You must have a plan for this. The military requires deployable servicemembers with minor children to submit a plan for the child’s care in the event of a deployment. However, a plan that’s created to satisfy the military’s requirement is not the same as a court order, and the plan submitted may not be in the best interest of the child.  Military standards are not law. While the military can enforce some standards, they cannot and do not override the law. If the military parent is the custodial parent and gets deployed, and the remaining parent does not believe the plan they had submitted is in the best interest of the child, he or she could file the appropriate motions to initiate temporary custody orders from the court. When the military parent returns, the custody agreement usually reverts back to the original plan, but it’s best to have that documented in the original custody agreement.

A Permanent Change of Station (PCS) 

It’s a fact of life for military members…. you can receive a notice of relocation at almost any time. For military members who are single parents, however, a PCS can throw a wrench into a custody agreement. Shared parenting would be difficult at best – impossible at worst – if the parents live states or even countries apart. 

If the military parent is also the custodial parent, don’t assume that means they can move the child away from the other parent. If they receive notice of a PCS and would have to move the child away from their school, friends, family, and activities, a court might reconsider what’s in the best interest of the child, given this new information. They may decide the military parent would still provide the child with more stability, or they may decide that moving the child at that point in time would not be beneficial. As the court will not assume prejudice against the military member, these types of decisions are made on a case-by-case basis, as the situation arises. 

If you or your ex receive a PCS, don’t delay in seeking legal guidance. You may be granted an emergency hearing, where the judge could issue a “stay” order to allow the court time to review the custody agreement. A stay is a temporary suspension of the court’s order, which could prevent – at least temporarily – the custodial parent from moving the child. 

Hire an expert in military divorce

The military has its own language, its own standards and requirements. It’s a complicated beast. That’s why it’s important you find a divorce lawyer who knows the ins and outs of military divorce…one who will make sure you’re meeting the military’s requirements while protecting your own rights. There are so many other issues to consider aside from custody. Does a housing allowance count as income for support calculations? What about bonuses for re-enlisting? If the military member maintains the health care responsibilities for a child, can the non-military ex-spouse still get into the base to seek services?

You have questions…. we have answers. The divorce lawyers at Kirkland & Sommers have helped many military families just like yours navigate through divorce and custody proceedings. It’s a privilege and an honor for us to serve our military members and provide them with the expertise and compassion they deserve. Don’t just hire any divorce lawyer, hire one who understands the military and what you’re going through. Talk to the experienced divorce lawyers at Kirkland & Sommers today, and get the information you need.

Learn more about our military divorce lawyers in Beavercreek and Fairborn.