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California Affords Custody Protections to Military Parents

Each year, thousands of men and women in the military are deployed to serve the country. These deployments can be hard enough without the added stresses of custody and divorce battles. Unfortunately, these are realities many of our servicemen and servicewomen face. Special Federal and California state laws provide legal protections for military parents and provide safeguards to protect their parental rights while serving. Military members with shared custody of a child who have received notice of deployment or mobilization should contact an experienced Los Angeles family law attorney to discuss their rights as military parents.

Federal and California State Protections

Federal law institutes a mandatory stay on legal action involving active duty military servicemen and servicewomen for the first 90 days of their deployment. The Service members Civil Relief Act (SCRA) – previously known as the Soldiers’ and Sailors’ Civil Relief Act – provides sweeping protections for members of the military, including those relating to custody battles.[1] This stay prevents civilians from blindsiding military parents with malicious or unexpected custody requests on the cusp of their deployment. Once the first 90 days of deployment has passed, California law governs the rights of active service military parents.

If military parents are fighting for custody – either prior to deployment or after they’ve left – California law provides ways in which they can have their voice heard in court. If they have not yet been deployed, but have been tapped for service at some point in the near future, a military parent may ask the court to move the child custody hearing up to an earlier date so that they can attend. If a military parent has already been deployed or if there is no way to move up the hearing, they may request to attend the hearing virtually.[2] This is typically done by phone or through video-teleconferencing apps such as FaceTime or Skype. So long as a judge determines that the virtual appearance by the parent is not unfair to another party, they will generally grant the request. California courts are most concerned with the well-being of a child and will go to great lengths to ensure hearings are comprehensive and fair.

Custody Rights of Military Parents in California

California Family Code Section 3047 governs the parental rights parents who are mobilized or deployed by the military. If a California military parent is deployed their parental rights – including those related to custody and visitation – may not be altered absent any additional factors.[3]

Changes to Custody

If a military parent who shares custody of a child with another be deployed, any changes to existing custody agreements may not be permanent. In some circumstances, changes will be permitted, but those changes are to be for the duration of the deployment. Once the military parent’s tour of duty has ended and they have returned to California, the custody agreement reverts back to its prior terms.

Temporary changes to a child custody agreement may be imposed if the military parent’s mobilization or deployment results in:

  • Relocation that is a significant distance from their child’s home, or
  • Otherwise adversely affects the parent’s ability to adhere to the agreement.[4]

Courts will determine if these factors are met by interviewing the parents and family members, and reviewing the specific facts of the case. Any changes that are imposed will be temporary unless the court later determines that reverting back to the old terms is not in the best interest of the child.

Family Visitation

In some cases, a military parent may ask the court to grant visitation rights to a certain family member – often an aunt or uncle, grandparent, or step-parent – to help make the deployment easier for the child. A judge may agree to such visitation rights if he or she determines that there is an existing and substantial bond between the child and family member, the visitation will reduce the negative effects of the parent’s deployment, and the visitation is in the child’s best interest.[5] These visitation rights can prove to be quite beneficial for children of military parents, especially those of a young or impressionable age.

Military service is a noble and commendable act, but can also add stress to an already stressful time. Military parents who have received notice of pending deployment or mobilization should consult with a Los Angeles family law attorney to learn about the rights and protections they are afforded by California law.

https://www.berenjifamilylaw.com


[1] www.justice.gov/crt-military/scra

[2] California Family Code 3047(c)

[3] California Family Code 3047(a)

[4] California Family Code 3047(b)(1)

[5] California Family Code 3047(b)(3)(B)