Understanding child custody

  • Published
  • By Capt. Ryan Richter
  • 90th Missile Wing Judge Advocate
F. E. WARREN AIR FORCE BASE, Wyo. --  Child custody can be a complicated matter for servicemembers. The military lifestyle, with its frequent moves, temporary duty assignments and deployments, presents custody issues parents in the civilian world are often able to avoid. Servicemembers are frequently confused about how custody is determined, how their military status impacts their ability to get custody of their children, or what happens to their children when they go TDY or deploy. Fortunately, there are answers to these questions and ways to prevent unexpected child custody issues.

It's important to understand that there are two aspects of child custody: physical custody and legal custody. Someone who has physical custody of a child is responsible for the day-to-day care of that child, and the child usually lives with that person. Legal custody, on the other hand, refers to a parent's authority to make major decisions for the child -- which school to attend, which doctor to visit, which religion to practice, etc. Often times, courts will not award physical custody and legal custody in the same way. For instance, a court might award physical custody to one parent, with the other receiving visitation rights, but decide that decision making authority should be shared jointly by both parents.

How custody of a child is decided depends largely on the parents. The best option is for the parents to reach an agreement on the terms of custody and visitation and then have that agreement ratified in a court order. When the parents cannot agree, it is left up to the court to decide the issues of child custody and visitation, usually at the time of the parents' divorce hearing. Regardless of how custody is decided, servicemembers need to ensure their custody order specifically addresses military situations. The document needs to address what will happen with the child during deployments or extended TDYs, and how visitation, if any, will be arranged and paid for when the servicemember moves across the country or overseas.

When deciding custody, the most important question that courts consider is what is in the best interest of the child. The deciding factors will vary with the facts of each case, but the court will generally consider each parent's ability to meet the child's needs. If a child is older, the court may also consider the wishes of that child when awarding custody. Military service alone does not mean a person is disqualified from having or winning custody of a child. It does, however, place a heavy burden on the military parent to prove that his or her duties will not interfere unnecessarily with the custodial role. Family courts usually try to maintain as much stability as possible for children, and military service can sometimes make that difficult. Remember, however, that courts look at numerous factors when deciding custody. As a military member, quality schools on base, recreational facilities, youth centers, day care facilities and the enrichment associated with traveling to other states and countries can work in one's favor for custody purposes.

If one is a servicemember who has custody of a child, there needs to be a plan for the possibility of deployment. Having a current family care plan on file with the service branch is a responsible place to begin, and it's required, but it is not the only consideration. Specifically, one needs to understand that the child's other biological parent will probably get custody of the child while one is away, even if both parents are not on good terms. If the other parent petitions the court for custody while a servicemenber is deployed, the court can override the family care plan, and most likely will unless that parent is declared unfit by the court. Bottom line is try to get both parents to agree, in writing, of the family care plan.

If one has questions about child custody, wishes to obtain a child custody order from the court, or have an existing order modified, or plans to leave a child with someone other than his or her biological parent while deployed, the legal office is here to help. Call the 90th Missile Wing legal office at 773-2256 to schedule an appointment with a legal assistance attorney who will advise one on these types of child custody issues.