Who Gets Custody if My Spouse or I am in the Military?

Regardless of what type of divorce you choose, there’s no getting around the fact that child custody is a brutal process fraught with fears of denied rights and less time. 

Worries like these can be particularly strong for parents serving in the armed forces. However, whether you are the spouse at home, or the one serving abroad, you are not alone if you find yourself wondering, “Who gets custody if my spouse or I am in the military?” 

Fortunately, both federal and California state legislatures have taken measures to protect the rights of service women and men, who are out fighting for our country whilst simultaneously dealing with divorce

Here’s what you need to know about military custody in California, and how the Maples Family Law team can help safeguard your rights while you’re on active duty. 


Will Military Service Affect My Custody Battle?

The short and emphatic answer is: absolutely not. Both state and federal laws prohibit judges from making custody decisions based solely on military obligations. 

The longer—and somewhat convoluted—answer, is that temporary concessions might still have to be made, in order to ensure that a child’s care doesn’t lapse or suffer, while a parent is away on active duty. Because the reality is: you can’t actually be home to care for your child and be on active duty at the same time. Which means that sometimes military service can inadvertently influence a judge’s custody determination. 

That being said, California courts have long maintained that a child’s best interests are served when allowed to have a loving, healthy relationship with both parents whenever possible. And to that end, both federal and state governments have provided a host of protections to ensure that the rights of military parents are not suspended, revoked, or denied based on their service to our nation. 


Federal Military Custody Protections

The last thing our government wants is for parents to feel like they’re being punished for devoting time to the armed forces. (We’re thinking that wouldn’t be very helpful for recruiting officers). Not only would it be unjust to punish someone for their service, but distracted soldiers aren’t the most productive ones, either. 

This two-fold concern is largely what motivated the adoption of the Servicemembers Civil Relief Act (SCRA), which, among other things, can be used to temporarily suspend divorce and custody hearings for service women and men, while on active duty.

This federal act, adopted in 2003, applies to all:

  • Active duty members of the regular forces (army, air force, navy, marine corps, and space corps); 
  • Members of the National Guard (when in active service, under federal orders); 
  • Members of the reserve (when called to serve on active duty); and, 
  • Members of the Coast Guard (when serving on active duty, in support of the armed forces). 

SCRA is specifically designed to relieve these individuals from the stress of civil litigation back home, so that they more fully direct their attention to their posts abroad.  

Here are a few of those SCRA protections relating to parental rights


Stay of Proceedings

The right to stay (or “hold off”) certain legal proceedings is an important one for the SCRA. This safeguard applies to individuals who cannot attend a hearing (or other legal procedure) in person, because of a military obligation. 

Individuals who invoke this particular protection should be prepared to provide proof of service. They should also keep in mind that, when granted, this hold won’t be infinite. Once their service is complete, they will be required to attend the proceedings. 


Stay of Execution (Enforcement) of a Judgment

Similar to a stay of proceedings, a stay of enforcement can be used to stop a judge from carrying out the terms of an order. However, once again, you must be able to show that military service was directly responsible for keeping you from upholding your obligations under whatever order you violated. 


Expedited Modification of Support

This protection gives you the right to request an expedited hearing for a modification of child support. Typically, this protection is utilized by service personnel who are being deployed out of state, so that they can get their modification reviewed and revised before departure. 


Interest Reduction

Certain parents might also qualify for a 6% reduction in interest for past due child support payments, for times when they were on active duty.

A non-custodial parent who wishes to file for this relief must show that his or her inability to pay the full amount of support was a direct result of military assignment. (Usually because they were making more money before deployment.) 


Military Qualified Debt Reduction Program

The SCRA also allows some National Guard parents to qualify for government debt reduction (such as federally backed student loans). This protection is reserved specifically for those whose income decreased, as a result of deployment.  


California Military Custody Protections

In addition to full compliance with the SCRA, California legislatures have also adopted their own, state-level safeguards for

military parents. Some of these protections include: 

  • Prohibiting custody modifications in certain situations; 
  • Keeping amendments to custody temporary; 
  • Suspending cases while the military parent is absent on active duty; and, 
  • Honoring official visitation requests issued by the military parent. 


Prohibiting Custody Modifications

According to the California family code, compliance with a military assignment cannot be used to justify a modification argument. (For example, if your ex wanted to use your absence as a way to justify a geographic relocation, or as an argument in favor of full custody, the court would not allow it).

That being said, judges are still permitted to consider other, non-military arguments in favor of modification. 


Temporary Amendments

If the disruption of your responsibilities is drastic enough to completely derail your parenting plan—such as would be the case if a custodial parent received an out of state assignment—then custody may be amended to give the secondary parent custodial power while you were away. 

However, these orders would be considered temporary, and custody would revert back to the original terms, once the primary parent came home again.


Case Suspension

If you are on active duty, custody and other family law cases can be suspended until you return.

In a similar vein, any default judgments that might have been entered against can be overturned—and the case reopened—if you can show the judgment was entered against you while you were on active duty.


Visitation Requests

Finally, a military parent in California can sometimes facilitate visitation rights for an outside adult (such as a step-parent, grandparent, or other family members), if: 

  • A preexisting relationship already exists; 
  • The visitation will help the child cope while their parent is away; and, 
  • The visitation doesn’t interfere with the remaining parent’s rights.  

This outside visitation cannot be requested by the outside party, however. It can only be initiated by the military parent. 


Military Custody Attorneys in California

Regardless of whether you are the spouse at home, or the one serving abroad, when it comes to military custody, it’s important to hire the right family law attorney. Someone who knows—not just California family law—but is experienced in understanding how these laws are affected and altered by military obligations. 

If you have more questions about military custody, and how it might play out in your divorce, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure the best outcome for your child.