How Does Military Service Affect Child Custody in California?

Military members who are divorcing often find themselves torn between their obligations to their country and their obligations to their young children. They may worry that their military service makes it impossible for them to share physical custody of their children. Fortunately, in California there are legal protections for military parents when it comes to child custody.

California courts have “the widest discretion to choose a parenting plan that is in the best interest of the child.” California Family Code §3040(e); In re Marriage of Burgess (1996) 13 Cal.4th 25, 31. The court will consider all relevant factors, including the child’s health, safety, and welfare, the child’s relationship with each parent, and any abuse, when making an initial custody determination.

Once a permanent child custody order has been entered, the court will consider the child’s need for continuity and stability before making any changes to the custody plan.

When a parent deploys, and the child has been in the other parent’s custody for six, nine, twelve months or more due to the parent’s deployment, the child’s interest in continuity would seem to weigh against going back to the pre-deployment custody arrangements. However, California has recognized that military service is unique, and has taken steps to protect parents whose parenting is affected by their military service.

In 2005, a time of increasing military presence in Iraq and Afghanistan, the California legislature enacted Family Code section 3047, which provides safeguards for deploying military parents:

• If a parent has been absent or has failed to comply with custody and visitation orders, that absence or failure to comply shall not be a sufficient reason to modify the custody orders if the parent’s absence was due to activation to military duty, mobilization, or military deployment. Family Code §3047(a).

• Any modification of custody orders that the court makes to accommodate a parent’s deployment or mobilization shall be deemed a “temporary order without prejudice.” Family Code §3047(b)(1).

• Once the service member parent returns from deployment or mobilization, there is a presumption that the custody order shall revert to the order that was in place before the deployment, unless the court determines that it is not in the best interest of the child. Family Code §3047(b)(2).

• In making temporary orders during deployment, the court must consider orders to ensure that the relocating parent can maintain frequent and continuing contact with the child. Family Code §3047(b)(3)(A).

• Upon a request by the relocating parent, the court may grant reasonable visitation rights to a stepparent, grandparent, or other family member under certain circumstances.

• If a parent is unable to attend a regularly scheduled hearing on custody and visitation because of that parent’s deployment, mobilization, or temporary duty, the court can either (1) hold an expedited hearing to determine custody and visitation issues prior to the parent’s departure, or (2) allow the parent to participate in both child custody mediation and the hearing by electronic means.

In summary, Family Code section 3047 is intended to provide a “fair, efficient, and expeditious process” to resolve custody issues when a parent receives military orders. In enacting this law, the California legislature intended to ensure that parents who serve in the military are not penalized for their service by a delay in appropriate access to their children.

If you have questions, please Contact Us for a free 30 minute consultation at 619-398-3468. We would be happy to help you.

Written by Jeanne Murray

Attorney Jeffrey P. Mach, Jr. is a Certified Family Law Specialist in the state of California. Mr. Mach is not a specialist in any other state.

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