Child custody considerations for military members

  • Published
  • By Cindy Middleton
  • 17th Training Wing Legal Office
Many service members have custody of, or visitation rights with children whose other parent is not the service member’s current spouse. A parent's military service can present a number of issues related to child custody. Deployments and frequent relocations may require service members to give up custody temporarily. Upon their return, service members sometimes face difficult custody battles. Absences due to military service can undermine and disrupt existing arrangements, creating stress on parents and children. There are processes and protections available to help with the impact of deployments and moves on current custody arrangements.

Family care plan

Before deployment or relocation, prepare a family care plan that describes who will provide care for the children financially, medically and logistically. AFI 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 the unit first sergeant or the base legal office.

Child custody issues related to relocation

If custodial agreement is already in place, and does not contain a provision related to military relocation, it can be worked with the court and the child's other parent to modify the order appropriately. Here are a few things to keep in mind:

• Arrangements are generally subject to individual state laws, not federal laws.

• State custody laws provide the basis for a court's determination when requesting permission to relocate with a child.

• Some states may require you to show how a move will benefit the child before approving the request to move and retain custody. Other states may prohibit any relocation without compelling circumstances.

Rights under the Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act protects the service member’s legal rights when called to active duty. The act applies to active-duty members of the regular force, members of the National Guard when serving in an active-duty status under federal orders, members of the Reserve components called to active duty, and members of the Coast Guard serving on active duty in support of the armed forces.

Under the SCRA, individuals can obtain a stay or postponement of court or administrative proceedings if military service materially affects the ability to proceed in the case. Service members can get an automatic stay of 90 days in the proceedings when they request this protection in writing. Any additional delay beyond the 90-day stay is given at the discretion of the judge, magistrate or hearing officer. This protection does not apply to any criminal court or criminal administrative proceedings. If a spouse attempts to change the child custody status while the member is deployed, the member can invoke their rights under the SCRA to postpone the hearing.

Individual state laws related to military child custody

Through the USA4 Military Families initiative, the Defense Department partners with states to educate policymakers, not-for-profit associations, concerned business interests and others about the needs of military members and their families. One issue currently addressed by the initiative ensures deployment separation does not determine child custody decisions. Currently, all 50 states have at least one meaningful provision that protects the rights of service members in custody cases. The Defense Department tracks four protections and two procedural forms of assistance for service members. All 50 states have at least one of the three protections which are interrelated. Additionally, there is federal legislation covering the four protections.

Find more information about the USA4 Military Families initiative at

Installation legal assistance offices

For assistance on family and domestic relations, including child custody, contact your installation's legal assistance office through the Armed Forces Legal Assistance Legal Services Locator visit