Military Service And Child Custody

The fact that nearly 50% of marriages in the U.S. end in divorce is well known. However, the divorce rate among members of the armed forces is slightly higher and continues to increase. As military divorces rise, so do the number of child custody cases, bringing issues particular to military service to the fore.

In the past few decades a large number of military servicemembers have returned from deployment to find that their child custody order has been modified based solely on past and future deployments. Members of the military who have been fighting abroad return to fight another battle at home over custody, finding themselves stuck between their love for their children and their commitment to their country.

The standard for awarding custody in New Mexico and around the U.S. is based on the best interests of the child. A judge makes a determination of what is in the child‘s best interest based on a variety of factors including the wishes of the parents, the relationship that the child has with each parent, and the ability of each parent to provide a stable home and family environment.

Military service unavoidably entails the possibility of being deployed to any part of the world for an extended period of time. Giving a military parent primary custody could arguably be against a child‘s best interests if deployment would cause instability and disrupt the child‘s routine. Many non-military parents have successfully used this argument to obtain a modification of child custody orders based on the past and future deployment of a military parent.

However, it is patently unfair that a soldier has to choose between serving their country and having custody of their children. It can certainly be argued that military service is not just a job, and that while servicemembers are risking their lives abroad they should not be penalized at home.

In response to the special circumstances presented by active service and deployment, the federal Servicemember Civil Relief Act suspends or postpones certain civil obligations while an individual is on active duty. Recognizing the special issues concerning child custody, a 2008 amendment to the Servicemember Civil Relief Act prohibits family courts from making permanent changes to a custody order while a servicemember is deployed.

However, the amendment did not go far enough, as family courts around the country continue to consider past and future deployment in child custody determinations once the deployed parent returns home. Because a servicemember can be deployed at any time in the future, many judges have found that this disqualifies that parent an award of primary custody of their child.

Since 2008 the House Armed Services Committee has been trying to gain Congress‘ approval for the Servicemember Family Protection Act, which would prohibit family court judges from considering deployment in child custody considerations. It would also expand the definition of deployment to incorporate unaccompanied tours overseas and humanitarian missions.

Supporters of the Act argue that it would not give servicemembers an advantage over non-military parents; it would just remove a disadvantage. On the other hand, opponents argue that past and future deployments should be considered in custody determinations because a parent‘s extended absence may have serious effects on a child‘s well being and stability.

The Servicemember Family Protection Act has passed in the House and is currently awaiting Senate approval. Your legislator might like or need to hear from you on this issue.


Collins & Collins, P.C.
Albuquerque Attorneys

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