How Does Military Service Affect Child Custody?


Every military member with children is required to have a family care plan. This is a detailed plan as to what's going to happen when and if you are deployed or go TDY. You have to designate responsible people, typically your spouse, to take care of the children. The factors that the court considers for child custody are what is in the “best interests of the child.” Any factor that can determine what's in the best interest of the child is something that can be looked at by a court when making a custody determination.

All aspects of home life can be investigated: the location, the personal relationship between the parents, and the relationship between the parents and the child, who helps the kids with homework, who cooks for the kids, who disciplines the kids, all of these things will be examined. Courts consider the parental interest of the parent in the children. If one parent has been involved throughout the child’s life, while the other parent has been taking voluntary deployments, the court is going to look to the parent who's been there as the primary caretaker. They're more likely to award sole physical custody to that person because they've shown an interest in their child. Other factors are mental health and stability.

Another factor considered by Courts is, oftentimes, expert opinions. If there are allegations of abuse, experts can be relied upon to testify to the court. Additionally, one unique statutory protection for military members in Alabama affecting custody cases is Alabama Code Section 30-3-9 which says that military deployment may not be the sole factor in a child custody determination. The question becomes how military service can impact the court in analyzing the factors in a custody case. You want your attorney to be aware of that and how that will affect and impact the trial court’s “best interest analysis” of all the factors considered.

Can A Child Have Any Say In The Parent He Or She Wants To Live With?

Most judges agree (and the law holds) that the preference of a child younger than 12 years of age isn’t going to be listened to in a custody case. Obviously, a judge can decide to listen to a child and if a child is talking about abuse, their input is going to be considered. As far as a child just wanting to go with Mom or Dad, the judge may give that some consideration, but it will typically not be a deciding factor. Even with older children, the weight of the child’s opinion is limited to the maturity of the child and do we really believe judges are going to let teenagers choose what they want to do?

Could I Obtain Custody Of My Children Even Though I Am Assigned To A Deployable Unit?

As long as you can show that you have a plan in place for the care of your child, you can obtain custody. Alabama has a code section ensuring that the military deployment of a military member is not the only factor to be considered in a child custody determination that provides some protection on this issue. However, the reality exists where one spouse is not in the military and is a suitable and fit parent and one spouse is in the military and is deployed. In that situation, the other parent will obviously be determined as the fit and proper parent to take care of the children while the spouse is deployed.

Parenting Plan – What Are The Options?

A parenting plan, whether part of a military or a civilian divorce, is obviously going to be limited by whether Dad or Mom is traveling frequently for their employment. If Dad is the primary caregiver and the homemaker, a court is going to award sole physical custody to him because he's the one at home to raise the child. I’ve had many cases where the military member is deployed and up until that point, the deployed military member had been the primary sole physical custodian of the child. However, the spouse knew that once the member was deployed for a year, it was a good strategic time to file for divorce to try to get sole physical custody of the children. Obviously the timing of the filing, and the military member’s absence, is a potent tool that can sometimes be used to the detriment of the spouse serving in the military.

On the other hand, if you can show that you're not deploying for the next three or four years and your kids are teenagers, you're going to have an opportunity to have the children just as much as your spouse. The options for a parenting plan are the same in a military divorce as they are for people who are limited by their civilian employment. I've seen plans where one member is serving and they're going to be deployed a lot, so an agreement is made that once the military member is back, they're going to have an extensive amount of time with the child.

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