What happens to child custody, in California, when a service member, is deployed?
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Military Child Custody
Military child custody differs from “regular” child custody in that deployment of a parent can have an obvious impact on child custody plans. Absences due to military service can undermine and disrupt existing arrangements, creating stress on parents and children. Military service can significantly influence child custody issues.
Temporary Primary Child Custody
As often happens, when one parent begins active military duty, the other parent gains primary custody solely because they are the parent who spends the majority of time with the child. And then, sometime thereafter, the parent returning from military service wishes to resume a more equal parenting time and the parent with more time refuses to do so.
Military child custody orders cannot be established or modified based on one parent absence that resulted from active military service and deployment outside the State of California. A parent who must serve on active duty does not lose joint custody of their child because they are serving their country.
Military child custody orders made before one parent’s deployment, it is often made only on a temporary basis which means that the court will review custody and the parenting schedule when the parent completes their deployment service.
To put it simply, in the State of California, military service members rights to raise their child are protected and, a service member who is serving in the military is not justification for depriving that parent of custody.
Family Care Plans
Before you deploy or relocate, prepare a family care plan that describes who will provide care for your children financially, medically and logistically if you are away due to military duty.
Military Child Custody Issues Related to Relocation
If your military child custody agreement is already in place, and does not contain a provision related to military relocation, you can work with the court and your child’s other parent to modify the order appropriately.
Your Rights Under the Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act protects your legal rights when you’re called to active duty. The act applies to:
- Active-duty members of the regular force;
- Members of the National Guard when serving in an active-duty status under federal orders;
- Members of the reserve called to active duty; and,
- Members of the Coast Guard serving on active duty in support of the armed forces;
Automatic Stay Under the Servicemembers Civil Relief Act
The Service members Civil Relief Act allows you to obtain a stay or postponement of court or administrative proceedings if your military service materially affects your ability to proceed in the case. You are entitled to an automatic stay of 90 days in the proceedings when you request this protection in writing. Any additional delay beyond the 90-day stay is given at the discretion of the court.
This protection does not apply to any criminal court or criminal administrative proceedings. If your spouse attempts to change the child custody status while you are deployed, you can invoke your rights under the SCRA to postpone the hearing.
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