Military Child Custody: Key Legal Issues

Child custody rules are complicated for anyone, but they can be even more complex for military families. This article is intended to help separating or divorcing military parents work through child custody rules.

Creating the Custody Agreement

In many ways, creating a custody agreement, or obtaining a custody order in disputed cases, is much the same for military couples as for civilian couples. The parties must make the same decisions using the same factors and place the children in the home that will serve their best interests.

Military parents also must consider the effects of possible deployments and reassignments on custody arrangements. Some service members may be deployed overseas with very little notice, and others may be reassigned to a base in another state or even another country.

Under normal circumstances, a parent cannot simply remove a child to another state without violating the custody order or child relocation laws. However, military parents are generally aware of the possibility that they will move out of state, and can include custody or visitation provisions in the event the military parent is deployed. Military parents should discuss these possibilities with their family law attorney, who can then recommend the best way to proceed.

The Impact of Military Status

In theory, the fact that one parent is in the military should not have a negative impact on custody arrangements. Most jurisdictions require that children be placed in whatever situation serves their best interest, and if it’s best for the child to be with the military parent, then that’s where they should be placed.

However, some military members and lawmakers worry that the possibility of deployment means that courts view military parents as inherently unsuitable primary caretakers. Lawmakers have attempted to pass laws which would require judges to consider other factors besides the parents' military status, and to prevent military parents from losing custody of their children simply because they are deployed. These laws have generally failed to pass because they potentially place the interests of the military parent above the best interests of the child. Additionally, many states already allow military members to delay any court action which takes place during deployment, including custody disputes.

Because deployments can be so disruptive to children, in most cases, the military's current policy does not allow single parents to enlist in the armed forces, although a service member may become a single parent after joining the military. If you’re considering a military career and have children, you should discuss the consequences of custody with an experienced lawyer.

The Family Care Plan

Single parents in the military and families in which both parents are in the military are required to create a family care plan which describes what will happen to their children (or any other dependents) in case of deployment. The family care plan must include:

  • A short-term caretaker, who is close to the base and can be called anytime during the day or night to take care of the children. The short term caretaker cannot be a member of the military, but can be a military spouse.
  • A long-term caretaker, who will take care of dependents in case of a long term deployment, and need not be local but must not be a member of the military.
  • Care provision details, or instructions on how to care for the child. These can include bank account numbers and passwords, instructions for how to transport the child to the caretakers' homes, any medical procedures necessary for the child's care such as prescription medication schedules, and any other notes that ensure the transition to the child's new home is as smooth as possible. Some plans must also include any necessary powers of attorney so that the caretakers can act on behalf of the parents.

The family care plan must be reviewed by the service member's commanding officer and updated annually. New plans are also required whenever a service member welcomes a new child into the family, a service member becomes a single parent either through death or divorce, or the service member's spouse becomes unable to care for the dependents for any reason. All the caretakers must sign the plans each time they are certified.

If the service member is the primary caretaker of the child, lives apart from the child's other biological parent, and does not name the other parent as a caretaker, then the parent must sign the family care plan to show his consent. If the other parent does not consent, a court order may be necessary to certify the plan. Many lawyers 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, such as the service member's estate plan, divorce decree, or custody order. A military lawyer can review your documents for potential conflicts and recommend changes to ensure that future deployments run smoothly.

Next Steps

Contact a qualified military law attorney to help you with military-related issues.