Are you fighting two wars: One in the military and one in court?

On Behalf of | Apr 5, 2017 | Military Divorce

You’ve done everything you can to be the best parent you can be, including taking on jobs to make ends meet that requires courage and dedication, such as service in the U.S. military. You knew when you got divorced that things wouldn’t be easy. After all, it’s challenging enough being a single parent in Missouri with a civilian job without factoring in the logistics of active duty deployments and potential changes of residence if you’re orders take you somewhere else.

You should not need to worry about child custody issues while you’re serving overseas. However, if a problem like this has indeed arisen in your life, you are not alone. Many other soldiers face contentious child custody battles when they were unable to participate in court proceedings due to their deployments.

Can you lose custody while serving active duty in the military?

One thing is sure: A U.S. military service member should never feel forced to choose between duty to his or her nation and protecting the best interests of children. You might believe that the Service Members Civil Relief Act protects you in these cases, but here’s what the law actually says:

  • This protection is automatic; you need not do anything to obtain it.
  • This protection is temporary and designed to keep legal action against a military service person at bay while he or she remains on active duty. It halts certain proceedings during deployment but doesn’t provide immunity from legal obligations.
  • The Act protects those serving on active duty from certain legal proceedings in which they cannot participate due to their deployments. For instance, the protection extends to issue such as:
  1. Foreclosures
  2. Evictions
  3. Auto leases
  4. Credit status
  5. Insurance and tax matters

However, the states retain jurisdiction over child custody issues.

  • Because the court focuses on children’s best interests, it’s possible for a court to order or modify child custody even though a military parent can’t appear in court because of service to the country. In other words, the welfare of a child outweighs a soldier’s inability to appear in court.

Numerous shocking and upsetting stories exist regarding members of the Armed Forces losing custody of their children while serving on active duty. Some former spouses actually wait until a service member deploys overseas before they submit a modification request in court. They then use the deployment to claim a drastic change in circumstances has occurred to warrant modifying an existing order.

Practice Areas

Military Law
Family Law
Social Security Disability
Worker’s Compensation
Personal Injury