Child Custody Proceedings in the Military

 Posted on May 20,2016 in Child Custody

The stresses of military deployments can lead struggling couples to begin the process of divorce and custody proceedings while one party is still overseas. However, a federal law, the Servicemember’s Civil Relief Act (SCRA), provides some protection to members of the military who are at a disadvantage in asserting custody rights due to physical distance.

SCRA

Under the Servicemember’s Civil Relief Act, judges are permitted to grant a stay of custody when a military member’s participation in the proceedings is materially affected by his or her service. In fact, stays are mandatory for 90 days after deployment if certain conditions are met, including the submission of:

• A communication containing facts that support a service member’s assertion that current military duty requirements materially affect his or her ability to appear at custody proceedings and that confirm a date when he or she will be available to appear; and
• A letter from the service member’s commanding officer confirming that the deployed parent’s current duty prevents appearance and that leave is not authorized.

If a parent is granted a stay of custody proceedings and the 90 day period expires before he or she is released from deployment, the parent can apply for an additional stay. An application for an extended stay can be made by the service member either:

• At the time of the initial application; or
• When he or she is unavailable to prosecute or defend his or her position.

The same information, including letters from both the service member and his or her commanding officer, must also be included in the application.

If the court refuses to approve an additional stay of proceedings, the judge is then required to appoint counsel to represent the interests of the service member in the child custody action.

Limitations

Unfortunately, a stay of proceedings in custody matters only provides limited relief. This is due to the fact that courts make custody arrangements based primarily on the best interests of the child, and not the interests of the parents. For this reason, if a child’s welfare is negatively impacted by a parent’s deployment, courts may go ahead and modify custody at the request of the present parent.

Making arrangements for custody in the event of deployment can help ensure that custody proceedings are delayed until the party returns from deployment; still, even this precaution is not a guarantee.

If you are considering a divorce and one or both parties are service members who are currently deployed, understanding how custody proceedings will affect your children and your ability to claim custody rights is essential. An attorney can help explain your options and ensure that the interests of deployed parties as well as their children are protected throughout the process. Please contact skilled Palatine family law attorney Nicholas W. Richardson for a free consultation.

Resources:

https://www.justice.gov/sites/default/files/crt/legacy/2011/03/23/scratext.pdf

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000