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December 03, 2020

Custody During Deployment

I have custody of my children but I am about to be deployed. Does this mean my ex will get custody while I am gone?

Probably. Unless there is some reason for the court to deny your ex custody (for example, if he has waived his custody right, a court has restricted his access to the child, or if he was declared an unfit parent by a court), the law likely won’t allow you to exclude your ex from custody.

It is a good idea to have a family care plan and to file it with your service branch and Department of Defense.  However, the plan is not the same as a court order and your ex may still petition a court for custody while you are deployed.  The court has the ability to override your family care plan.

If you create a family care plan that allows your children to stay with someone else (say your parents) during deployment, you should attempt to get your ex to agree by discussing your intentions with him or her. Even if your ex is willing to go along with the arrangement, it is still a good idea to get a court order consistent with the family care plan to make sure that everyone is on the same page. Agreement between you and your ex on the family care plan will help you when you go to court to get a new or amended custody order. Whether you get a court order or not, make sure you have everything in writing and that the order or agreement spells out what will happen when your deployment ends.

While there could be changes to the custody agreement while you are deployed, the Servicemembers Civil Relief Act contains provisions that may prevent the non-deployed spouse from permanently changing the child custody order while you are gone.  There could also be state law that provides similar or even stronger protections for deployed personnel. Bottom line? To effectively understand and assert your rights, you need to talk with a military legal assistance attorney about the best way to go about making custody decisions and arrangements prior to your deployment.

What about when I get home from deployment? How hard will it be to get custody back? I am afraid my ex will fight me when I try to get the kids back.

The first step will be to look at state law (some states have laws that indicate that deployment cannot be held against the military custodian) and if your temporary custody order gives any direction (this is why it is important to make sure that you have a court order establishing the temporary custody).

If these don’t help, there are a number of factors a court will look at to determine whether custody should transfer back to you after your military absence ends. These include how well the children are doing in their new environment, the type of neighborhood and home they are currently living in, how connected they are to their new communities (i.e., are they participating in after school activities), and their grades and academic performance.

Can a custody order be changed?

Yes. A custody order is never permanent. However, once a parent is awarded custody through a court order, the judge can change the custody order only if there is a substantial change of circumstance affecting the best interest and welfare of the child or children.