Child Custody and Visitation
States need to take special steps to protect the custody and visitation rights of deployed service members and their children.
There are now 1.9 million children who have one or more parents in the military, including 75,000 single military parents. If these parents have custody of their children and deploy to war zones or receive assignments that do not allow them to take along dependents with them, the military services recommend that they complete what are called family care plans, outlining how their children will be cared for in their absence.
In addition, the Department of Defense recommends that custodial parents who deploy notify noncustodial parents of what arrangements they have made for their children. While these requirements solve many of the practical problems associated with deployments, some legal problems still arise.
For example, when service members who are custodial parents deploy, or when they return, non-custodial parents frequently challenge their custody or visitation rights. Because family law is generally a matter for state courts to decide, state policymakers have been endeavoring in recent years not only to protect of rights of service members who are parents, but also to ensure that their children’s interests are protected.
Many states have addressed these issues with the help of lawyers from the American Bar Association’s Standing Committee on Legal Assistance for Military Personnel, which works to help the Army, Navy, Marine Corps, Air Force, and Coast Guard improve the effectiveness of legal assistance provided on civil matters.
While the laws differ, military family experts recommend that all state laws contain some basic components. Attorney Mark E. Sullivan, a retired Army Reserve JAG colonel and expert on military family law issues, has written an article describing these basic components:
- Allowing service members to request expedited hearings: When service members receive orders to deploy, it makes sense to resolve legal challenges to their family care plans or custody arrangements before they leave.
- Allowing courts to use electronic testimony when service members are unavailable: If legal disputes issues cannot be resolved before service members deploy, and they cannot return home for court hearings, it makes sense to allow them to testify by telephone, video teleconference, or other means of electronic communication.
- Requiring custodial parents who receive orders to give noncustodial parents adequate notice so that potential problems can be resolved; in addition, custodial parents who are not service members should be required to accommodate service members’ leave schedules to permit visitation.
- Allowing courts to delegate service members’ visitation rights to other family members. Deployed service members may wish to delegate their visitation rights to other family members. Allowing courts to decide whether such delegation is appropriate helps avoid inappropriate choices by service members or arbitrary refusals by custodial parents.
- Terminating temporary custody orders that are entered when service members deploy: In many cases, custodial parents give temporary custody to noncustodial parents or family members. A provision that terminates that temporary custody automatically helps ensure that — absent any serious reasons — service members can resume custody when they return.
- Requiring that a service member's absence due to deployment may not be the sole basis for a change of custody. Before states began to address this issue, some noncustodial parents challenged parental rights of deployed parents based solely on absence. While policymakers moved initially to prohibit such challenges altogether, it soon became apparent that some returning service members cannot, or should not, resume custody of children because of combat-related physical or mental disabilities. By ruling out challenges based solely on parents’ absence, states allow courts discretion to decide cases in the best interests of children.
What States are Doing
According to USA4 Military Families, 42 states are at least partially sensitive to some aspect of military service in their child custody and visitation laws.
Washington authorized dramatic changes to its child custody and visitation laws for deploying service members in 2009. Courts can no longer hold deployments against parents in determining custody arrangements. Deployments used to count as “voluntarily” giving up custodial duties, but that is no longer the case.
Temporary shifts can be made to custody arrangements, then switched back to normal, without a court order so long as temporary plans end within 10 days of a service member’s return. This means that if a custodial parent deploys, he or she can leave the child with the non-custodial parent throughout the deployment, then return to pre-deployment arrangements once back home.
Additionally, if the deploying parent previously had rights to visit and spend time with his or her child, another relative can fill that role as a temporary delegate for visitation, so long as there is a prior relationship between the child and the delegate.
If a military parent or his or her non-military spouse feels that changes to a custody order cut put the child at risk, either party can request an emergency hearing and put changes to custody arrangements on hold.
Finally, if a Washington service member has a pending requirement to appear in court but must deploy, he or she can request the hearing be expedited, or that arrangements be made for phone, email, or web camera representation in the hearing. The service member thus retains the right to present evidence on his or her own behalf, despite active duty status.
John McCoy, the sponsor of the child custody legislation, says staff members from Columbia Legal Services brought the issue to his attention with documentation showing the need for reform. The concept, McCoy says, was easy to sell, but finding the right language was more difficult. McCoy offers words of both caution and encouragement to other states. He reminds legislators to stay focused on the goal and not get bogged down in smaller nuances. “Just do it,” he says. “The troops need peace of mind.”
- State Rep. John McCoy
- Bruce Neas
Legislative Coordinator and Staff Attorney
Columbia Legal Services
Georgia’s Military Parent’s Rights Act, passed in 2011, is the most recent state law relating to military child issues.
Getting it passed was “hardly” an easy task, says John Camp, a former Air Force Staff Judge Advocate, who now practices law in Georgia and played a leadership role in getting the legislation passed.
Recalling the debate, Camp says everyone wanted to be patriotic, but also brought concerns to the issue:
- They didn’t want to create a “favored class” of individuals, which could prompt equal protection charges
- They didn’t want to limit trial court judge’s decision-making authority; they didn’t want to burden judges with an influx of expedited cases
- They worried that delegating visitation time to a party other than a parent could put children at risk
- They didn’t want to show preference for military parents over non-military parents.
Those favoring the bill argued the state could balance its concerns for children with the nation’s interest in national security, which could be undermined by morale, recruiting, or retention problems that could occur through unresolved child custody battles. Others, however, were dismayed that military parents can sign up for an all-volunteer force, knowing full well they might be separated from their children — and perhaps compromising their well-being
Camp offers useful recommendations to policymakers looking to adapt similar laws: First, he advises working with attorneys who understand both the military and how the state handles child custody cases. He believes this approach is more effective than allowing a legislative counsel draft the law.
Second, he recommends partnering with a legislative sponsor who represents a major military community and has a vested interest in the issues.
Third, once the bill is drafted, the more vocal the support, the more likely it is the bill will be passed. Veterans groups, he feels, are a natural place to start to rally support; they can be “powerful voices if they are effectively energized.”
Finally, Camp says that USA4 Military Families provided outstanding resources, such as legislative maps, that help legislators visualize how their states fit in to a larger national picture. Georgia legislators were able to see they had fallen behind the rest of the country in not passing child custody laws to help military parents.
The bill became law without a single negative vote.
- John Camp
- American Bar Association Standing Committee on Legal Assistance for Military Personnel (LAMP)
- USA4 Military Families
- American Bar Association Family Law Section’s Military Committee
- Mark E. Sullivan