Agreeing on a custody arrangement is often stressful for parents. Whether the issue coincides with a divorce or the parents were never married, it can be difficult to put personal issues aside and focus on what’s best for the children. When one or both of the parents is in the military, the situation becomes even more complicated.
Depending on the branch in which they serve and their rank, a parent can have odd working hours, be deployed on short notice, or may be ordered to move to a new state or country. There may also be an issue of whether the parent is required to live on base. While child custody requires stability, military service sometimes creates a level of uncertainty.
These are all on one end of the spectrum though. In other situations, parents in the military have their children live with them full time and provide a safe and consistent home. In fact, many military bases are equipped for their personnel to have families and form tight-knit communities.
If you’re a member of the armed services and need help regarding child custody, you’ll need to find a civilian attorney. In most situations, a military attorney can’t help with a custody agreement because it’s outside of the military system. However, as an active-duty member of the military you do have certain rights and protections under the Servicemembers Civil Relief Act.
Jonathan Breeden is a Raleigh custody lawyer. He has worked with military personnel from Fort Bragg and throughout North Carolina for years, fighting to uphold their rights as parents and build the best future for their children. You might think being in the military will harm your chances of gaining custody or visitation, but with the aid of an experienced Raleigh family lawyer, you have a chance to set up a comfortable situation for everyone involved.
According to North Carolina General Statutes section 50-13.2(f) , your military status shouldn’t negatively affect your child custody case. Therefore, in theory, the court should consider the same factors that apply to civilians in custody cases to members of the military. However, many active members worry they may be seen as less than ideal parents because they could be relocated or deployed. In some situations, this a valid concern because the court still considers the best interests of the child above all else in deciding custody.
In general, parents have the right to determine custody and visitation themselves or with the advice from attorneys. Many military members create alternating plans for when they’re on deployment versus when they’re at home.
However, if you can’t come to an agreement on child custody, either parent can bring an action in court.
It’s crucial to note that a parent must file for custody in a place that has jurisdiction over the children. Usually a parent will file for custody where the children currently live, but he or she can also file in the place where the children lived for the previous 6 months or where the children and a parent have significant connections, such as relatives. For military members who have moved around, it’s important to speak with an attorney first to ensure you file for custody in the appropriate place.
Before you head to court, you must understand there are types of custody, primarily physical and legal. Physical custody is who the child lives with and legal custody is the right to make decisions for the children regarding their upbringing, including their schooling, religion, medical care, and outward appearance.
Generally, parents have equal rights to both physical and legal custody of their children, but these will be split after a custody arrangement is finalized. Physical and legal custody are not always divided the same way. While one parent may have primary physical custody, legal custody may remain apportioned between both parents equally.
Physical custody of children is generally primary for one parent or joint between both parents. In a primary custody arrangement, the child lives with one parent most of the time and has visitation with the other parent. Visitation issues sometimes arise with military personnel if they’re stationed in another state. In this case, phone calls, video chats, and longer visits can be arranged, but the financial aspect will also need to be predetermined.
Joint custody could mean a child splits his or her time between the parents evenly, but this is rare in North Carolina. If not split evenly, there will be a parent with primary custody and the other will have secondary custody.
North Carolina law states that a judge must do what’s best for the children when creating a custody and visitation arrangement. There’s no presumption that a mother or father is better able to care for the children, and there is no presumption that a member of the military is unable to be a good and stable parent. Also, under North Carolina law, a judge can’t use past or future deployments as the only reason to deny primary or joint physical custody.
Certain factors a judge will consider are the children’s age and developmental needs, the parent’s health and housing situations, evidence of previous substance abuse or neglect by a parent, and the wishes of the children.
Once a custody order is finalized in North Carolina, all other states must recognize the order. This means, if you have primary custody of your children, you don’t have to file for custody again at a new base. You may need to file a copy of the order in your new jurisdiction to ensure it can be enforced.
If you don’t have primary custody and are required to move, you and the other parent must come to an agreement or you will have to return to court.
When negotiating an agreement regarding custody and visitation, it is important to consider factors like what will happen if a service is deployed or relocated. Important things to consider will be visitation details, transportation, and financial support.
It should be noted that members of military must support their children. In addition to the typical legal avenues to collect child support, failing to pay support can lead to military penalties and wage garnishment after a court order.
If you have custody and are shipped overseas, your custody arraignments can vary based on the circumstances. In some instances, your deployment may not allow for you to bring your children. You can ask the court to appoint a guardian; however, judges prefer children stay with one of their parents unless there are clear reasons that this wouldn’t be in the children’s best interest.
The Military requires parents to establish a Family Care Plan in the event one or both parents are deployed. This plan outlines what will happen to a service member’s children if the service member is deployed or absent The requirements can vary, but generally include caregivers’ contact information, how children will be supported, information about the child’s other parent, and custody details is the event of the service member’s death.
If your children can accompany you overseas, whether or not you must return to court will depend on if you and the other parent can reach a new agreement. If you don’t reach an agreement, you may need to return to court to seek permission to take your children with you or to work out a new visitation schedule.
Can My Ex Change the Custody Plan If I’m Deployed?
A lot of military personnel worry about their ex-spouse taking their children or refusing contact if they are away due to their service. However, under the SCRA no changes can be made to a legal proceeding involving an active duty military parent. If you ex files for a custody modification, it will not proceed for approximately 90 days. However, this protection is not absolute. If there is a compelling reason to change the order, your ex could potentially alter the agreement during a deployment.
Do I Give Up Custody if I Join the Military?
While enlisting in the military can have a significant effect, at least in the short -term on the amount of visitation you can enjoy with your children, it does not mean that you need to give up your parental rights.
What If I Don’t Want My Ex to Have Custody While Deployed?
In North Carolina, you and your child’s other parent can either come up with your own custody agreement while you are deployed or pursue a temporary court order that outlines child custody arrangements. This will require filing a motion to give custodial responsibility to a person of your choice temporarily. This gives someone the same legal ability you have to make decision, but they will still have to adhere to the same custody agreement you had with the other parent.
If you are in the midst of a custody case, whether it was proceeding initiated by you or the other parent, and you are called to active duty as a member of the regular military, National Guard, or reserves, the Servicemembers Civil Relief Act allows you to postpone or “stay” court proceedings or hearings for at least 90 days so that no ruling on custody is made in your absence. This federal law provides for an automatic 90-day stay and gives a judge or magistrate discretion to extend the stay.
This law helps protect active-duty military personnel from losing custody or having their custody or visitation rights altered while they’re deployed and unable to appear in court to contest a custody complaint.
A military divorce adds a layer of complexity to an already difficult process. There are important things like support and custody to keep track of and anticipate. You deserve to have someone looking out for your interests while you focus on being the best parent and service member you can be.
Attorney Jonathan Breeden understands all of the unique issues that arise when a parent is in the military, including the rights and protections offered by the Servicemembers Civil Relief Act. Whether you’re seeking to be the primary parent or want to ensure your visitation rights, he’ll fight for what’s right for you and your children.
Attorney Jonathan Breeden has more than 19 years of experience helping individuals and families in Wake, Johnston, and Harnett counties with complex family and domestic issues, including divorce, custody, child support, and alimony. He provides compassionate and aggressive advocacy for people living in communities throughout North Carolina, including Wake, Harnett, and Johnston counties.
Call Breeden Law Office today:
Call (919) 480-8005