Military Parents with Custody Problems: What’s the Law?

So you’re a parent with sole custody and you’re in the military. You get the news that you’re being deployed, and that you’re going to have to hand custody of your children over to your ex for the duration of your deployment. Is that really what’s going to happen?

It depends. If your ex hasn’t been excluded from custody (usually because they’ve been found to be unfit as a parent or because they’ve signed a waiver giving up parental rights), the assumption is that the best place for any child is with a parent. In other words, if your ex can parent your child, the state’s assumption is that they should.

Family Care Plans Don’t Change the State Law
Many military parents get confused because the military requires them to file a Family Care Plan (FCP) explaining what they intend to do with their children while they’re on duty. But the FCP isn’t a legal document — it’s just a formality the military requires. The Michigan family courts are obligated by state law to hand custody over to the other parent so long as they’re fit to parent, even if it invalidates your FCP. In short, your FCP doesn’t transfer legal custody, so anyone caring for your child while you’re deployed has no legal grounds to seek medical care for, to legan grounds to guide the education of, and no legal obligation to look after your child. Why would the court leave the child in the hands of someone who can’t be held accountable for the child’s welfare?

Flipping the Script
Fortunately, there are some ways that you can flip the script if you feel compelled to keep your child out of your ex’s hands. The best way is to file a new custody plan with the court, along with a Custody Consent Order signed by your ex. This basically amounts to your ex agreeing to a new custody plan without having to go through a court case, so if they agree, you could put your child in the custody of their grandparent, aunt, or other relative while you’re deployed.

Without getting that consent order signed, the only other way to ensure your ex doesn’t get temporary custody of your child while you’re deployed is to have the courts declare them unfit to parent — which can take months, so get started immediately. Even then, the chances are good that you’ll fail.

Why it Matters
Our military personnel are supposed to be protected during their deployments by a law called Servicemembers Civil Relief Act (SCRA), which puts an automatic hold on all civil proceedings while they’re serving the country. This works for almost all purposes — if you’re midway through a bankruptcy when you get called, it’ll be in the same state when you return. But family courts have universally (and correctly, in my mind) decided that the Best Interests of the Child doctrine trumps the SCRA, so any parent filing for custody of the child during their ex’s military absence will not only be heard, but they’ll almost always win.

The real problem, though, comes when the soldier returns home. That’s because family courts interpret that Best Interests of the Child doctrine very narrowly — they (incorrectly, in my mind) only look at what’s going on in the child’s life right now. When a soldier returns from duty, the child has been living with and parented by the non-military parent for an extended time. This leads the family courts to decide that the non-military parent has become the “new normal,” and thus opens the door for that parent to request full custody and win with startling regularity.

Have a child, serve your country, lose the child. That’s the painful reality that many of our military parents face, and it’s the law. Only a significant amount of planning and careful execution can avoid it — and even then, not every time. If you’re concerned about what will happen to your child when you’re deployed, call Gucciardo Family Law today. The sooner we get started, the better your chances!