Child Custody and the Military Service Member

Armed service members, including unmarried parents and those who have spouses in the military, must prepare a “family care plan” prior to deployment to ensure the welfare of their family members. Failure to have a valid family plan can result in disciplinary action against the soldier and also prevent deployment.

The family plan addresses important financial matters that affect dependents during the soldier’s absence. If the service member is a single parent, or if both parents are service members, then a temporary guardian must be appointed for the children. Guardians need to have ready access to military benefits for the children. To accomplish this, a special (limited) power of attorney will be sufficient for military medical treatment, and more. But because it is not a court-ordered guardianship, the limited power of attorney will not be useful for all of the children’s needs. Because of this, the child’s other parent should be the first choice as custodian of the child while the service member is deployed.

When the service member becomes a single parent while he or she is deployed, through divorce or separation, then the family plan may no longer be valid and action must be taken. The soldier can ask for emergency leave to respond to court pleadings in the family law case. When the family plan fails because of changed circumstances like these, then the commander has discretion to grant the soldier emergency leave. When the hardship on the service member is extreme, a hardship discharge may be requested severing service.

Child Custody Jurisdiction

Arizona has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which addresses the jurisdictional issues that arise in child custody disputes. But what if the child isn’t in the U.S., but is overseas? This may be surprising to some, but the foreign country where the child is a habitual resident (that is, a resident for six months, typically), will have jurisdiction over the child. That the child is a U.S. citizen is not determinative to this subject matter jurisdiction issue. A service member may have his or her domicile in Arizona, but that does not give Arizona jurisdiction of the child who is overseas. If, for example, the child has been living in Germany for the past six months, then Germany has subject matter jurisdiction over child custody.

How do you move forward on a custody matter in a foreign country? The first step is to apply for a custody order from the foreign court. This means that treaties, such as the Hague Convention, are controlling. The parents could also enter into a parenting agreement (proof of the other parent’s consent to custody) which is strongly recommended whenever possible. Creating an enforceable parenting agreement keeps control in the hands of the parents, and gives less control to the foreign court over the custody issue. A foreign court order would include provisions for returning the child to the U.S.

Consent Orders Transferring Custody Prior to Deployment

Before the custodial service member is deployed, or mobilized, consider seeking a consent order transferring custody to the civilian parent for the period of deployment. The order results from an agreement between the parties regarding the transfer of custody before mobilization, and the transfer of custody back after mobilization. When the service member returns, the child is returned immediately to him or her. The consent order would include a description of the circumstances necessitating the custody transfer (the deployment), and a date when the service member is expected to return.