What Happens to My Custody Case When I Am Deployed?
Active duty military members have enough to worry about without the added stress of a child custody case. If you are a single parent and a member of the military, then you might worry about the impact your deployment or other service-related activities might have on your kids and on your child custody orders.
Overview of Military Child Custody Laws
Generally, California courts seek to maintain the status quo when it comes to how kids spend their time - meaning that if a child consistently spends more time with one parent and less with another, the courts will tend to keep that arrangement in place. This can seem unfair if you are a member of the military and can't be around your kids because of your duties as a servicemember.
California law and federal law both recognize the added burdens of military service on parents.
California Family Code Section 3047(a) provides that:
"A party's absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state."
This means that if you are deployed or otherwise prevented from being with your children due to your duties as a servicemember, your absence alone cannot be considered a reason to change custody orders.
Military Relocation & Child Custody
Further, if you have joint custody and are ordered to move as part of your service, California Family Code Section 3047(b)(1) provides that any change in custody orders resulting from the move:
"shall be deemed a temporary custody order made without prejudice, which shall be subject to review and consideration upon the return of the party from military deployment, mobilization, or temporary duty."
Not only will the court consider the modification to be temporary, but the court will assume that once you return, the custody orders will change back to the orders that were in place prior to your departure.
Military Custody & Automatic Stays
Further, you are entitled to a stay of any court proceeding during your service - meaning that your court case can be put on hold and nothing will be decided in your absence. This applies if your "military duty requirements materially affect... [your] ability to appear" or your "military duty prevents appearance and... military leave is not authorized" at the time. (Servicemembers Civil Relief Act Section 522(b)(2)(A)&(B)).
You will need to provide a letter from your commanding officer demonstrating that your duties prevent your appearance or impair your ability to appear.
If you are a member of the military, be sure to contact an attorney at the Law & Mediation Firm of Klueck & Hoppes, APC before taking any action in your custody case. Know your rights and responsibilities. In recognition of your sacrifice and service, our office offers a heroes' discount to any active duty military member.