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Fighting for Custody as a Deployed Service Member

After the September 11th terrorist attacks, thousands of Americans left a spouse and children behind to enlist in the military to fight for our country.[1] A few years later, some of these Americans returned to an ex-spouse and Court orders related to custody of and visitation with their children. For many of these service members, the circumstances to which they returned came as a surprise, as they were denied the chance to participate in court proceedings due to their deployment.

In 2003, the federal government took notice of this dire situation and enacted the Service Members Civil Relief Act (hereinafter “the Act”).[2] Pursuant to Section 502 of the Act, civil proceedings, including family law proceedings, must be temporarily suspended, usually for a period of ninety (90) days, until military representation can be appointed. The primary purpose of the Act is to ensure that active duty members remain focused on national defense, and not be distracted by emotional litigation.

However, the Act still did not protect those service member parents from losing custody of their children; very often, the other parent would request sole custody of the children on the basis that the service member parent was no longer able to be physically active in the child’s life. In 2005, the California Legislature added further protections in the Family Code for these service member parents, by providing that a service member’s “absence, relocation, or failure to comply with custody and visitation order shall not, by itself, be sufficient to justify a modification of a custody or visitation order” if the reason for the absence, relocation, or failure to comply is related to military service. Fam. Code §3047.

Now more than ever, California courts have realized that military service members should not be penalized in child custody disputes simply because they have been away on active duty for a significant period of time. If you are a military service member who has recently come home to face a child custody battle, please contact the experienced attorneys at Bremer, Whyte, Brown and O’Meara to ensure that your rights under the Act and the Family Code are properly exercised.

[1] Christopher Missick, Note and Comment, Child Custody Protections in the Service Members Civil Relief Act: Congress Acts to Protect Parents Serving in the Armed Forces, 29 Whittier L. Rev. 857, 857-60.

[2] 50 U.S.C. App. §§ 501-597b