Nolo's Essential Guide to Divorce - Emily Doskow [139]
Custody and Visitation
Sharing custody of children after a divorce is always challenging. For military personnel, custody and visitation can be complicated by frequent moves and uncertainty about future deployment.
Custody, Visitation, and the SCRA
Although the SCRA lets a service member delay judicial proceedings, children need stability and some measure of predictability in their lives. Courts deciding custody disputes involving a military parent generally try to balance the SCRA with the children's needs. Often, those needs trump the SCRA.
Even when a service member has been granted a delay under the SCRA, a court may make an order for temporary custody so that the child's living situation isn't put on hold and so that the military parent can't do an end run around the civilian parent's rights. For example, in one case a service member left his daughter with his mother, the child's grandmother, and when his ex-wife sought custody, tried to invoke the SCRA to prevent the court from entering an order. The court transferred custody to the child's mother, refusing to apply the SCRA stay where the child's welfare was at stake.
In a similar case, a service member left her child with her new spouse despite the fact that she and her ex-husband shared joint custody of the child, and the court refused to apply the SCRA to prevent a change of custody.
Often, it may not be clear which state has jurisdiction over the child. The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) is a law in every state that determines jurisdiction for all children, including children of military personnel. The rules that apply to where a custody action can be brought are complicated-they often rest on where a child has lived for the six months before the action is brought and can sometimes work against a service member. For example, a mother who lives in California may be deployed overseas and leave her child with her husband. If he decides to file for divorce while she's deployed, and moves to Arizona for longer than the six month period necessary to establish jurisdiction, the wife may find when she returns that she's subject to a custody action in Arizona even though her permanent home-and the former home of her child-is in California.
More about custody. There's more about the UCCJEA in Chapter 7 and at www.ncjrs.gov/pdffilesl/ojjdp/189181.pdf.
If you're in the military and you want to avoid a result like this, you can ask your spouse (when you separate or when you are deployed) to sign an agreement about where your child's permanent home is. This will allow you to avoid a fight over jurisdiction if there's a custody dispute when you return from your deployment.
The service member's protection against default judgments also applies to child custody proceedings. This is a new rule and there aren't many cases to provide guidance, but it appears to mean that while a service member is deployed, a civilian spouse can't persuade a court to enter a permanent child custody order on the basis that the service member parent fails to appear and argue against the change.
A number of states have also enacted laws that affect child custody where service members are involved. Some of the state laws go further than the SCRA, stating that no permanent change in custody can be made while the service member is deployed. Some provide that a service member's absence due to military service can't be counted against the service member when a court is considering the factors that affect a custody determination-in other words, the lack of contact with the child can't be used as a factor.
Preparing a Parenting or Family Care Plan
Divorcing parents need a parenting plan, to set out how they plan to care for the kids after divorce. (Chapter 6 discusses parenting plans and how to negotiate and create one; Chapter 13 deals with marital settlement agreements and how to incorporate parenting plans.)
When one or both parents are in the military, you have additional things to think about when you draw up these important agreements.