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 “Good to Go” (and To Return Home!)

INTRODUCTION: SILENT PARTNER is a lawyer-to-lawyer resource for military family law issues. Comments, corrections and suggestions should be sent to the address at the end of the last page.

Janet Smith was just stopping for a cup of coffee at The Courthouse Deli when she saw Sam Jones in a corner booth looking glum. After ordering, she came over and joined him, asking “Why the long face, Sam?”

Sam replied, “I’ve got a problem, Janet. Maybe you can help me – I know you were in the Army JAG Corps for four years, and you might know some answers. It’s about a military custody situation.”

“Sure,” replied Janet. She had done her homework and was familiar with the literature on military custody issues.[1] “Let’s hear what it involves.”

Sam responded, “My client is Army Sergeant Jane Doe. She’s about to be deployed, and she has custody of her son, Johnny. I’ve heard that when she deploys, she’ll have to give custody over to the dad, her ex-husband, and that really worries her.”

“No, she doesn’t have to transfer custody,” replied Janet. “So long as the father has been found to be unfit in court or else he has waived his rights to custody, she doesn’t need to give up custody for the interim while she’s away.”

Sam sat up. “What do you mean? He’s not been found to be unfit, and there’s no waiver. Jane just wants to make sure that Johnny is in the right place while she’s overseas. After all, it’s about the child’s best interest!”

Janet replied, “Well, the ‘right place’ (as Jane calls it) is probably with dad, unless he’s been excluded legally, such as by his own waiver, a custody consent order, termination of parental rights, or a court’s finding of unfitness. There is in most states a presumption that it is in the best interest of the child for custody to be given to one or both of the child’s parents, as opposed to a third party.”

“Does she have to give custody of Johnny to him?”

“Probably so,” Janet replied, “since he’s not waived his rights to custody, he hasn’t consented to another person’s having custody, and he isn’t unfit. The law in virtually every state says that you cannot exclude the other parent from custody without one of these conditions. And – if it’s unfitness – the finding must be made in a court order. That means Jane may be asking for trouble if she tries to transfer custody of Johnny to her current husband, to her mother in San Diego, or to her cousin Elvira in Florida”

“A court order? But she already has a Family Care Plan listing her mother as Johnny’s caregiver. It’s an official Army document. It’s required by law and by Department of Defense regulations.[2] It has been approved by her commanding officer. Isn’t that enough?”

Janet answered, “Yes – it’s enough for the Army. But a Family Care Plan is not a court order. When there’s no written agreement with the other parent, and when the only document is one without a judge’s signature, then the client has serious exposure.”

Sam protested, “But surely we’re okay if we get a court order granting custody to the child’s grandmother in San Diego – right?”

“Yes, that’s fine, so long as there’s full compliance with state law requirements,” responded Janet. “In that case, state law will probably permit the court’s transfer of custody to the grandmother if the father doesn’t appear and contest, or if he consents to the transfer. The requirements of state law ordinarily include –

  • Mom has located dad and properly served him with the initial complaint and summons;
  • She’s also given him reasonable advance notice of the hearing; and
  • She filed suit in compliance with the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), which requires (ordinarily) that the children must have lived in your state for at least the last six months preceding the filing. In other words, you clearly have custody jurisdiction.”

“However the preferable way to move forward,” Janet continued, “would be to get the dad’s consent to a relative taking custody – if you can obtain that consent. The general rule is that the other party, the non-custodial parent, cannot be excluded from custody – absent his consent – unless he is found by the court to be unfit by reason of abandonment, abuse, neglect or other conduct inconsistent with parental rights and responsibilities. And in some states, you must show actual harm before excluding the other parent.”

Sam exploded. “Abandonment? Abuse or neglect? Whoa! How are we supposed to prove those charges?”

Janet coolly replied, “Look to state law and cases for elements of proof in this area. You will usually find the answers under termination of parental rights or a similar heading.”

Sam continued his questions. “What if dad is not unfit but he agrees to give custody to the maternal grandmother? Or, more likely, what if the father is not unfit and will not consent to giving up custody?”

“If the father isn’t unfit but will agree, then you should file for custody, serve the father and grandmother, and prepare a consent order or “agreed order” for the transfer of custody to the grandmother. Make sure you have secured dad’s unconditional consent. Consider getting an appearance before the judge or a notarized statement, if appropriate under state law, or if you think that dad might change his mind later.”

“If, on the other hand,” continued Janet, “there is no unfitness and the dad won’t agree, then I suppose Jane Doe should consider transferring custody to him for the duration of her deployment, since he’s not waived his rights to custody and he is not unfit.”

Sam was having none of it. “But this guy is a real bum! He drinks, he smokes heavily and he’s got a gun rack in his pick-up truck. Not only that, but we understand that he is also ‘seeing another lady’ these days. We’re really worried about his getting custody!”

“So? Is he unfit? Can you prove it?”

Sam retrenched and dug in. “But the father will probably demand child support from my client!”

“Of course he will,” answered Janet. “Why shouldn’t he? He’ll need help in supporting Johnny while Jane is overseas. There’s nothing wrong with a father asking for child support when he’s in charge of the kid and he has a custody order.”

Sam’s last-ditch question showed the ultimate concern his client had. “But we’re really, really worried that he won’t return the child when the deployment’s over. We think that he’ll demand permanent custody!”

Janet responded, “There are many factors, Sam, which come into play in determining the custody of Johnny when a military absence (such as deployment, mobilization, TDY, or remote tour) ends. For example:

  • Will Johnny be thriving in the new environment, or doing poorly?
  • Will he have lots of new friends near his dad’s home, few friends, or about the same?
  • Let’s talk about Johnny’s health. Will dad neglect his physicals, shots and dental check-ups? Or will he do a great job, better – perhaps – than your client did?
  • Neighborhoods play a part. What are each of the neighborhoods like – that of Johnny when he was at “home,” and the new neighborhood with dad? How does dad’s home stack up against your client’s home?
  • How about Johnny’s outside activities – with your client, and with the father? How do they compare?
  • If Johnny’s in school, then we’ll need to look at his grades. What kind of progress is he making with dad? How does that compare to his academic performance when he was with your client? And what about dad’s participation in school activities and parent-teacher conferences, compared to your client’s participation?
  • What does state law say about return of the child at the end of the deployment? Most states have statutes which say that a deployment cannot be held against the military custodian in a change-of-custody motion, and that any temporary custody order during deployment ends promptly after the return of the absent military parent.
  • If there is a temporary custody order, what does it say? A good court order will say that Johnny’s environment prior to the deployment was satisfactory in every way. It will also state that Johnny is to be returned to the mother immediately upon her return from deployment. This return to mom is to be done without delay, without the need to go to court, without the requirement of any court order to effectuate the return of custody.”

The bottom line, according to Janet, is this:

  1. If you’re the lawyer for the soon-to-be-absent parent, you owe her your best efforts to write up an airtight custody consent order – bullet-proof and rock-solid.
  2. You should draft and get signed – upon trial or by consent – a foolproof temporary custody order, drafted after thinking about the possible objections and changes-of-mind that dad will have “after the fact.”
  3. That order should be one which states explicitly the current circumstances of the child. If there are flaws, problems, advantages or facts which need to be established (such as the child’s progress in school, the benefits of the current neighborhood, or the prior misconduct of the other parent), then the order needs to explain these. If you want Johnny to return to the previous environment when the absence ends, you need to say that the child is in an excellent situation at present, prior to the deployment.
  4. And, in addition to requiring the automatic return of the child upon the deployed mother’s return home, the order should also provide for the rights and protections which your client wants for herself and for her child, such as interim visitation during any leave which she has, and telephone contact with the child during her absence.

These are the key points in maintaining military custody for a parent in uniform, dealing with the custody claims of the other parent during a military absence, appointing a step-parent or relative as alternate custodian, and to resuming custody when your client returns from overseas.

[rev. 6-23-2014]

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SILENT PARTNER is prepared by Mark E. Sullivan, a retired Army Reserve JAG colonel and the author of The Military Divorce Handbook (American Bar Association, 2d Edition, Aug 2011) For revisions, comments or corrections, contact him at Law Offices of Mark E. Sullivan, P.A., 5511 Capital Center Drive, Suite 320, Raleigh, N.C. 27606 (919-832-8507); E-mail – mark.sullivan@ncfamilylaw.com.



[1] See, e.g., Mark E. Sullivan, “Third Rail Custody: The Military Case,” Juvenile and Family Court Journal, Vol. 65, Issue 1, pp. 45-72 (Winter 2014), and Chapter 4, “Custody and Visitation,” from Sullivan, The Military Divorce Handbook (ABA, 2nd Ed. 2011).

[2] See Department of Defense Instruction 1342.19. A Flow chart showing the responsibilities of servicemembers and commanders in the development and implementation of family care plans is at Appendix 1 after the third part of this article.