Divorcing A Military Or Imprisoned Spouse

About the Military Parent and Child Custody Protection Act

Specific laws, called the "Military Parent and Child Custody Protection Act," may apply to custody proceedings when one parent is a military service member.

 

Words Used in the Military Parent and Child Custody Protection Act

As used in the Military Parent and Child Custody Protection Act, the following definitions apply:

"Deploying parent" means a parent of a minor child who is deployed or has received written orders to deploy with the United States military or any reserve component thereof, and (1) whose parental rights have not been terminated and (2) whose custody or visitation rights have not been restricted by court order to supervised visitation only, by a court of competent jurisdiction.

"Deployment" means military service in compliance with mandatory written orders, unaccompanied by any family member, for combat operations, contingency operations, peacekeeping operations, temporary duty, a remote tour of duty, or other active service.

"Order" means any custody or visitation judgment, decree, or order issued by a court of competent jurisdiction in this state or any judgment of another state which has been made executory in this state.

 

Establishing Custody Orders

If no custody order is in place and a parent's deployment is imminent, either parent can ask the court to set an "expedited", or quickly scheduled, hearing to establish a temporary custody order before the deployment. If military deployment prevents the court from making a decision on the matter, both parents must cooperate regarding custody and visitation.   

 

Modification of Custody Orders

• Unless a custody matter was fully tried by a court before deployment, a court cannot enter a final order modifying the existing terms of a custody or visitation order until ninety (90) days after the termination of deployment.  Generally, this means that a court cannot modify a custody or visitation order while a parent is deployed or for ninety (90) days after the termination of the deployment.   

• Deployment or the potential for future deployment, alone, does not establish a "material change in circumstances" for a permanent change to a custody or visitation order.   In general, a material change in circumstances is required for a court to consider changing a custody or visitation order. 

 

Temporary Modification of Custody Orders

A court can temporarily modify custody orders in consideration of a deploying parent's situation, as follows:

• The court must designate the order as "temporary," and can modify an existing order may be modified to reasonably accommodate the deployment of a parent.  Reasonable accommodations might mean additional custody days or visitation hours before the deployment. 

• If the existing order granted the deploying parent custody or visitation prior to deployment, and unless the court determines that it is not in the best interest of the child, a temporary modification order has to grant the deploying parent reasonable custody or visitation during periods of approved military leave.  This means that a parent cannot be denied previously-awarded custody or visitation and must be allowed to exercise it during approved military leave time. 

• All restrictions on the custody or visitation in the existing order shall remain in effect in the temporary modification order.

• A temporary modification order shall specify that deployment is the reason for modification and require the other parent to provide the court and the deploying parent with written notice thirty (30) days prior to a change of address or telephone number.

• The court shall have an expedited hearing on any custody or visitation matters, upon the motion of a parent and for good cause shown, when military duties prevent the deploying parent from personally appearing at a hearing scheduled regularly on the docket.  This means that a deploying parent whose military duties prevent them from personally appearing at a hearing scheduled in the court's normal couse of business can ask the court to set a hearing sooner, at which the parent could be present. 

• A temporary order will end at the completion of deployment and the previously-existing custody order will become effective by operation of law.  However, upon motion alleging immediate and irreparable harm to the child, the court may terminate the temporary order prior to the end of deployment and re-instate the previously-existing custody order. 

 

Delegation of Visitation

On the motion of a deploying parent, the court can delegate visitation to a family member with a substantial relationship to the child, if the court determines it is in the best interest of the child.  For the purposes of delegation of visitation, the court shall consider Civil Code Article 136 in determining the best interest of the child.  Delegated visitation shall not create standing to assert separate visitation rights.  Delegated visitation shall terminate by operation of law at the end of the deployment or upon a showing that the delegated visitation is no longer in the best interest of the child.