Child Custody and Support for Military Parents
The definition of a “family member” varies somewhat, depending upon the branch of the armed services that the military member is with. In general, family members for purposes of support include the current spouse, minor children of the current spouse, minor children from a previous marriage, and any minor children who were born out of wedlock or who were legally adopted.
Just as with civilians, the obligation to support a child born out of wedlock requires establishment of paternity. For military members, three methods are typically used to accomplish this:
- DNA testing, the results of which are submitted as evidence in state court paternity proceedings
- Service member’s written affidavit of paternity
- Service member’s consent to being named as the child’s father on the birth certificate
Court-Ordered Support and Voluntary Support Agreements
There is a preference with all branches of the military for either court-ordered support or voluntary written support agreements between spouses and parents. When there is a support order in place or a written support agreement, the obligation may be enforced by the service member’s commander, which will save both time and costly litigation.
Unlike custody, jurisdiction over child support issues is not established by the child’s location. Instead, the court’s personal jurisdiction over the supporting parent is determinative. When the noncustodial parent is an overseas service member, the custodial parent will file the support action in the member’s state of legal residence, or domicile.
Military Regulations and Interim Support
Military regulations require service men and women to support their family members. These regulations ensure that family members continue to receive support, even when a divorce is not yet pending. How much the interim support will be depends in large part on which branch of military service is involved.
For example, the Navy and Marine Corps have a “support scale” based on the sailor’s or Marine’s gross pay and housing allowance. The Air Force expects its members to provide adequate support, but has no set minimum amount.
Interim support is temporary support. As such, it is not a permanent solution and does not define the service member’s permanent support obligation. Instead, interim support is used as a stop-gap, an adequate amount until permanent court orders are issued, or until a support agreement is entered into.
Commander Relief from Support Obligations
Even with an interim support obligation under military regulation, the service member’s commander has authority to grant relief from the obligation to pay. The commander’s decision to grant the service member relief from interim support is typically based on the following circumstances:
- The military member was a victim of domestic violence or abuse by the civilian spouse
- The civilian spouse had a gross monthly income in excess of the service member’s
- For a sufficiently long time, the civilian spouse received the requisite support from the military member
- The civilian spouse received other payments from the service member. The commander may credit the service member for regular and recurring payments, including consumer expenses such as car payments and house payments that already go toward maintaining the other spouse
- The two have lived separately and apart for a year or longer (12-18 months depending upon the service branch)
Although the non-military spouse may lose interim support as determined by the commander, the service member’s obligation to pay child support continues — even when the civilian spouse is the custodial parent.
Enforcing Military Support Obligations
When the service member doesn’t comply with military regulations, and there is no court order in place, what can be done to enforce support obligations? The first option is to send a written complaint to the service member’s commander and request enforcement of military support regulations. This is a simple and inexpensive approach to getting payments back on track, so a letter to the commander is a good place to start.
The commander enforces service member compliance with military regulations. The member may be reprimanded (a permanent stain on one’s military service record), have pay forfeited, or be criminally sanctioned for noncompliance with military regulations. The commander may schedule support payments going forward, prospectively, from when the family member’s complaint was received. However, the commander is not able to enforce payment of support arrearages.
Court-ordered support obligations are the easiest to enforce. There are two methods of collecting from military members: garnishment and involuntary allotment.
Garnishment of a service member’s wages begins with submission of the court orders for child support and spousal support to the Defense Finance and Accounting Service (DFAS). Involuntary allotment is used to collect support arrearages. The support order and evidence of two months arrears or longer must be provided to the DFAS. Through involuntary allotment, the DFAS may withhold additional funds from the service member’s disposable pay and housing allowance to pay past due support amounts.