Custody, consent: revised family care plan guidance

  • Published
  • By Cindy Middleton
  • 17th Training Wing Legal Office
A National Guard member is happily married and raising two sons, the older one from a previous marriage. He received orders to deploy, assumed that the right thing to do was to leave his older son in his current home and situation, and designated his current wife as the short-term and long-term caregiver. However, the older son's mother disagreed. She sought and won temporary custody during the father's deployment, and before he could return from his deployment, the mother was granted primary custody in a permanent order.

Child custody is one of the most emotionally charged and difficult issues parents face. The fact that a service member may experience a permanent change in their custody arrangements while deployed is a disturbing reality. As a result of cases like the above, there are new requirements regarding the care of children of a divorced service member while the member is deployed.

Air Force Instruction 36-2908, Family Care Plans, now requires members to not only consult with an attorney prior to designating someone other than a non-custodial parent as the long-term or short-term primary caregiver in the event of a deployment, but also "to the greatest extent possible" obtain written consent to that designation from the other biological parent for any family care plan that would leave their child in the custody of a third party.

If the member is unable to obtain the non-custodial parent's consent, the member should attach an explanation of the absence of that consent and acknowledge the availability of legal counsel to discuss the associated risks and the best possible course of action. The service member might need to incorporate the family care plan into a temporary order by a court of competent jurisdiction.

Service members are encouraged to incorporate deployment-related matters in the initial divorce and custody proceedings and to complete their Family Care Plans long before a deployment occurs. That way, they can be confident that their children's living situation will not change while they are deployed. Parental notification and consent forms may be obtained from your unit First Sergeant or the Base Legal Office.