Military Service and Child Custody

• Jurisdiction: California,United States
• Author: Written by Jeanne Murry
• Citation: Vol. 45 No. 1
• Publication year: 2023

MILITARY SERVICE AND CHILD CUSTODY

Written by Jeanne Murry^*

With its coastal location and wide-open spaces, California is home to the largest military population of all fifty states with 162,362 active-duty and 55,537 reserve military personnel stationed at forty-one bases across the state in 2021.¹ Service members can be found in locations spanning the State from Coronado to Camp Parks. These soldiers, sailors, airmen, and marines are often stationed with their families.

Military marriages face unique challenges, including frequent moves and long deployments; the rate of divorce in the military is around 3% per year.² When military members are stationed within the State, the superior court has jurisdiction to hear issues related to child custody. When military parents ask the family court to decide issues of child custody, the courts are faced with two competing interests: 1) the best interest of the child, and 2) the public policy not to penalize military members for their service.

For purposes of an initial custody determination, the trial court has, "the widest discretion to choose a parenting plan that is in the best interest of the child."³When the parents are unable to agree on a custody arrangement, the court must determine the best interest of the child by, "considering all relevant factors, including the child's health, safety, and welfare, any abuse by one parent against any child or another parent, and the nature and amount of the child's contact with the parents."⁴

Once a permanent custody order has been entered, "the paramount need for continuity and stability in custody arrangements - and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker - weigh heavily in favor of maintaining" that custody arrangement.⁵

When parents are activated to military duty, mobilized, or deployed, the court must consider the impact of the parent's military duty on the child. When the military parent returns from duty, the child may have been with the other parent for six months, nine months, a year, or more. The child's interest in continuity and stability favors maintaining the order in place during the deployment; however, California has recognized military service is unique, and has taken steps to protect parents whose parenting is affected by their military service.

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

A parent's,

absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.⁶

If a parent with sole or shared physical custody of a child receives orders from the military requiring a substantial distance move, or the orders have a significant effect on the ability of the parent to exercise custody or visitation rights then any necessary modification the court makes to the custody

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orders shall be deemed a, "temporary order made without prejudice." The temporary order is subject to review and reconsideration when the military parent returns from duty.⁷

Once the service member returns from deployment or mobilization, "there shall be a presumption that the custody order shall revert to the order that was in place before the modification, unless the court determines that it is not in the best interest of the child"⁸ The court shall not, as part of its review of the temporary order, order a child custody evaluation under Family Code section 3111 or Evidence Code section 730 unless the party opposing reversion to the pre-deployment custody orders "makes a prima facie showing that reversion is not in the best interest of the child."⁹

In In re Marriage of E.U. & J.E., 212 Cal. App. 4th 1377 (2012), the court of appeal reversed the trial court's ruling that E.U., the father, should lose primary custody of his child due to his temporary deployment to Afghanistan, during which the child's mother assumed primary custody.¹⁰In this...