Child custody rules are complicated for anyone, but they can be even more complex for military families. This article is intended to help separating or divorcing military parents work through child custody rules. In many ways, creating a custody agreement, or obtaining a custody order in disputed cases, is much the same for military couples as for civilian couples. The parties must make the same decisions using the same factors and place the children in the home that will serve their best interests. Military parents also must consider the effects of possible deployments and reassignments on custody arrangements. Some service members may be deployed overseas with very little notice, and others may be reassigned to a base in another state or even another country. Under normal circumstances, a parent cannot simply remove a child to another state without violating the custody order or child relocation laws. However, military parents are generally aware of the possibility that they will move out of state, and can include custody or visitation provisions in the event the military parent is deployed. Military parents should discuss these possibilities with their family law attorney, who can then recommend the best way to proceed.
The Impact of Military Status
In theory, the fact that one parent is in the military should not have a negative impact on custody arrangements. Most jurisdictions require that children be placed in whatever situation serves their best interest, and if it’s best for the child to be with the military parent, then that’s where they should be placed. However, some military members and lawmakers worry that the possibility of deployment means that courts view military parents as inherently unsuitable primary caretakers. Lawmakers have attempted to pass laws which would require judges to consider other factors besides the parents’ military status, and to prevent military parents from losing custody of their children simply because they are deployed. These laws have generally failed to pass because they potentially place the interests of the military parent above the best interests of the child. Additionally, many states already allow military members to delay any court action which takes place during deployment, including custody disputes. Because deployments can be so disruptive to children, in most cases, the military’s current policy does not allow single parents to enlist in the armed forces, although a service member may become a single parent after joining the military. If you’re considering a military career and have children, you should discuss the consequences of custody with an experienced lawyer.
The Family Care Plan
Single parents in the military and families in which both parents are in the military are required to create a family care plan which describes what will happen to their children (or any other dependents) in case of deployment. The family care plan must include:
• A short-term caretaker, who is close to the base and can be called anytime during the day or night to take care of the children. The short term caretaker cannot be a member of the military, but can be a military spouse.
• A long-term caretaker, who will take care of dependents in case of a long term deployment, and need not be local but must not be a member of the military.
• Care provision details, or instructions on how to care for the child. These can include bank account numbers and passwords, instructions for how to transport the child to the caretakers’ homes, any medical procedures necessary for the child’s care such as prescription medication schedules, and any other notes that ensure the transition to the child’s new home is as smooth as possible. Some plans must also include any necessary powers of attorney so that the caretakers can act on behalf of the parents.
The family care plan must be reviewed by the service member’s commanding officer and updated annually. New plans are also required whenever a service member welcomes a new child into the family, a service member becomes a single parent either through death or divorce, or the service member’s spouse becomes unable to care for the dependents for any reason. All the caretakers must sign the plans each time they are certified. If the service member is the primary caretaker of the child, lives apart from the child’s other biological parent, and does not name the other parent as a caretaker, then the parent must sign the family care plan to show his consent. If the other parent does not consent, a court order may be necessary to certify the plan. Many lawyers recommend incorporating the family care plan into the custody order to avoid unnecessary hassle. Family care plans should not conflict with any other legal documents, such as the service member’s estate plan, divorce decree, or custody order. A military lawyer can review your documents for potential conflicts and recommend changes to ensure that future deployments run smoothly. All divorcing parents should have a parenting plan describing how they will share time and care of their children after the divorce.
If you are in the military and uncertain about where you’ll be deployed and for how long, it’s especially important, and it may be practical for you to develop alternate parenting plans for various possibilities. For example, if the service member might remain at a base that’s close to where the children live, prepare a plan that calls for visitation consistent with expected free time for that parent. At the same time, prepare a plan that you’ll implement if the service member is deployed overseas or transferred farther away. Communication is really important often service members don’t know exactly what’s going to happen, but it’s important to convey to the other parent all the information that is available, and make contingency plans that will cover your family whatever happens. Where only one parent is in the military and the parents have joint custody, the civilian parent will generally take care of the child when the service member is unavailable. When the military parent has sole custody, however, many states consider a transfer of custody to the other parent to be a change of custody, and it’s not uncommon for the court to allow the military parent’s new spouse or another family member, like an aunt or uncle or grandparent, to take over as the child’s guardian during deployment if the military parent is the sole custodial parent.
Army Family Support Rules
Army Regulation 608-99, “Family Support, Child Custody and Paternity,” requires a soldier to provide an amount equal to the basic housing allowance at the “with dependent” rate, unless a court order or written agreement provides for a different amount. If the soldier has more than one support obligation, that amount is divided equally among the supported parties. This is not an absolute requirement, however; the regulation contains provisions that allow the commander to waive requirements in certain cases, such as when the spouse makes more money than the soldier, if the soldier is a victim of abuse, or if the family member is in jail.
Air Force Family Support Rules
Air Force Instruction 36-2906, “Personal Financial Responsibility,” does not specify a dollar amount for adequate support. In the absence of a written agreement or court order, adequate support is determined by the individual commander, based on the circumstances.
Navy and Marine Corps Family Support Rules
The Naval Personnel Manual Section 1754-030 provides the following guidance to commanders for determining adequate support in the event of a nonsupport complaint, where there is no court-ordered amount, nor written agreement:
• Spouse only — 33.3 percent of gross pay
• Spouse and one minor child — 50 percent of gross pay
• Spouse and two or more children — 60 percent of gross pay
• One minor child — 16.7 percent of gross pay
• Two minor children — 25 percent of gross pay
• Three minor children —33.3 percent of gross pay
Gross pay includes base pay and basic allowance for housing (if entitled), but does not include hazardous duty pay, sea or foreign duty pay, incentive pay, or subsistence allowance.
Punishment for Failing to Pay Support
If a commander does elect to punish a military member for failing to pay support, any such administrative sanctions are protected by the Privacy Act of 1974. Therefore, the commander cannot even legally inform the complainant that the member has been punished. In addition to individual service regulations, the Department of Defense Financial Management Regulation prohibits payment of the basic allowance at the with-dependent rate to members who refuse to provide adequate support to their dependents. The regulation also contains provisions to recoup any BAH payments already made for periods of nonsupport. The best way of ensuring you receive spouse/child support from a military member is by obtaining a court order. If the member still fails to pay, you can return to court and obtain a garnishment or involuntary allotment order. This order allows you to have the support payments taken directly out of the member’s pay, through the Defense Finance and Accounting Service (DFAS), completely bypassing the military chain of command. Keep in mind, however, that service members have certain legal protections under the Service member’s Civil Relief Act. For example, if a service member cannot appear in court due to military necessity (if the member is deployed or assigned overseas), and the commander certifies that leave is not possible; the court must grant a 90-day stay (delay) in any court action. Upon application to the court, the member can request that such stays be extended. It’s best to make your complaint in writing. If you don’t know where the member is stationed, you may have to use one of the military’s locator services. Another option is to call the base locator. Each military base operates a locator service, which can release (non-privacy act) information about military members assigned to that base. Whether you elect to write or call, keep your communication unemotional and to the point. Simply state that your spouse is failing to make support payments as required by an agreement or court order (depending on the situation) and military regulations, and you’re requesting assistance to obtain the required support. Include all facts related to the support (date of separation, date member stopped providing support, and so on).
Garnishment and Involuntary Allotments
There are only two ways to involuntarily take money from a service members’ pay for spousal support (alimony) or child support, and both methods require legal action: Federal law authorizes garnishment against the pay of military members to enforce child support and alimony in accordance with state law. Garnishments may be placed against the pay of active-duty, Reserve, Guard, and retired military members. The procedure to obtain a garnishment order is determined by state law. However, federal law determines how the garnishment order is applied to military pay, that is, how service or process is accomplished, the type of pay subject to garnishment, and so forth. Unless state law specifies a lesser amount, federal law provides a limit of 50 percent of the member’s aggregate disposable earnings for any workweek if the member is currently supporting a second family (spouse or child) and 60 percent if the member is not supporting a second family. The percentage may be increased by 5 percent if the arrearage is 12 weeks or more. Federal law authorizes allotments from active-duty military pay in order to satisfy child support and alimony obligations. Alimony alone does not qualify under this law. These statutory allotments may only be paid from active-duty pay. A statutory allotment may be initiated when child support and alimony payments are at least two months in arrears. Allotments cannot exceed 50 percent of a member’s pay and allowances if the member is supporting a second family. If the member is not supporting a second family, the allotment may not exceed 60 percent.
Contested custody cases are some of the most fraught matters in litigation. The stress is compounded if one parent happens to be in the military and is facing deployment or relocation. Couples with a military partner should work diligently on keeping lines of communication open, and always remember to keep the best interest of their children at the forefront of their minds. The following are some things to remember when facing a contested child custody action in a military divorce.
• Be Proactive
• Be Flexible
• Be Prepared
• Relocation After Divorce
Lawyer For Military Child Custody
When you need an attorney to help you with child custody and you are in the military, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506