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Service members Civil Relief Act Provisions: Military Divorce and Child Custody

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b2ap3_thumbnail_military-divorce-level_20180409-190342_1.jpgChild custody can be contentious in any case. However, it can be more complicated in cases involving military personnel because of the uncertainty surrounding future deployments overseas or assignments that are stateside. The Servicemembers Civil Relief Act provides protections for military personnel related to legal cases filed against them.

Protective Provisions

The Servicemembers Civil Relief Act protects the legal rights of individuals who are called to active duty. The protections apply to active duty members of the regular force, members of the reserve who are called to active duty, active duty Coast Guard personnel in support of the armed forces and members of the National Guard when a federal order places them on active duty.

Under this law, a service member can get a stay or postponement of a court proceeding if the individual’s military service affects their ability to participate in the case. This stay usually lasts for 90 days after the service member is no longer on active duty.

The service member can request an additional stay, but the judge has the discretion to approve it or not. Therefore, if a spouse tries to change child custody spouse while the service member is deployed, he or she can invoke the rights under the Servicemembers Civil Relief Act.

Family Care Plans

The military requires certain individuals to have a family care plan in place, which includes when a child’s sole caretaker or both caretakers might be deployed. This plan is required when a service members is a single parent with custody of a child under 19 years of age or shares custody with another parent to whom they are not married, when both parents are service members and have custody of children under 19 years of age, or when a service members is the sole caretaker of a child under 19 years of age or of an adult family member who cannot provide for his or her own care. Service members in these situations are required to advise the military immediately of this status. The service member then has 60 days if on active duty or 90 days for reserve members to give a commanding officer a formal family care plan.

Family Care Plan Provisions

The family care plan should contain certain information, including a plan for what will happen to the service member’s children while he or she is on active duty or deployed for a period of 31 days or more. The family care plan should include the other parent’s identifying information and contact information. The caregivers’ information should also be included. This requires the service member to have the caregiver certify that the caregiver has all of the necessary information to care for the service member’s children and accepts the responsibility. The plan may also name an alternate caregiver who will handle these responsibilities if the primary caregiver is unable to handle them.

The family care plan may include different caregivers for different situations. One caregiver may be named in the event of short-term absences while another may be named in the event of long-term absences.

The family care plan should also indicate how the child will be supported financially while the service member is absent. The service member may need to prepare a power of attorney to the caregiver or another agent.

The family care plan should also indicate who the service member wants to have custody over his or her children if he or she becomes incapacitated or dies. If there is another legal parent, that parent will automatically take custody in other cases. However, if the parent believes this designation would not be appropriate, the service member can leave instructions to that effect and include the reasons for this designation.

The family care plan should also include information about transporting the children if the plan goes into effect, such as how airline tickets will be paid and how the family will get to the airport. It should also indicate when the transfer will be made from the short-term to the long-term caregiver.

Relocation Issues

If the military service member relocates, this may have implications on child custody. Individual state laws typically dictate this issue, not federal laws. State laws provide the basis for how a court determines whether child custody stays intact after a relocation and whether the parent must request permission to relocate with their child. Some states require the moving parent to show that it is beneficial for the child to move before they approve the relocation request.


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