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, you might worry about the impact your deployment or other service-related activities might have on your kids and on your child custody orders.
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 and Federal law recognize the added burdens of military service on parents. California law 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." (California Family Code Section 3047(a)). 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.
Further, if you have joint custody and are ordered to move as part of your service, California Law 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." (California Family Code Section 3047(b)(1), emphasis added). 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.
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 - 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. (Servicemembers Civil Relief Act Section 522(b)(2)(A)&(B)).
If you are a member of the military, be sure to contact a San Diego divorce 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.