Third Rail Custody: The Military Case

• Published date: 01 January 2014
• Date: 01 January 2014
• DOI: http://doi.org/10.1111/jfcj.12016

Third Rail Custody: The Military Case

By Mark E. Sullivan

ABSTRACT

Military custody and visitation cases often involve issues of deployment overseas

and transfers between military bases, both here and abroad. Judges must be aware of the

rules for relocation and custody modification, living circumstances on and around the

military installation, and all of the usual issues in custody cases. This article deals with

facts regarding the military environment, Family Care Plans, unaccompanied tours of

duty, and delegated visitation rights while a parent is away on orders. It also contains

checklists and model forms for judges to use in the military custody and visitation case.

INTRODUCTION

Custody and visitation cases have their own generous share of problems and

challenges, but an even higher measure of these are offered in cases involving military

personnel. The trial of such a case may involve temporary or full custody issues and

hearings, an active-duty servicemember (SM) or a member of the Reserves or National

Guard, a visitation dispute, or the decision of physical or legal custody. The hearing may

also raise issues of parental relocation and temporary inability to care for a child in one’s

custody due to a military transfer between bases or a deployment order. In these situa-

tions, the issues are usually made more complex by the unseen presence of the military

command structure. Any of these factors add unpredictability to most cases, since the

parties have no control over military orders for transfer to another base, temporary

training assignments, or deployment to a hostile environment. Unlike civilians, SMs face

involuntary transfers that cannot be declined or negotiated. The mobility of parents in

uniform make the military custody case a truly electric experience.

The purpose of this article is to discuss the needs of military and non-military

parents, strategies for family court judges to consider, and how to protect and serve the

best interest of children in their courts. It will also include clauses to insert in the

Mark E. Sullivan is a partner at Sullivan & Tanner, P.A., in Raleigh, North Carolina. He has been

certified by the North Carolina State Bar as a Family Law Specialist since 1989. He is a member of the

American Academy of Matrimonial Lawyers and the Family Law Sections of the North Carolina Bar

Association and the American Bar Association.

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Juvenile and Family Court Journal 65, No. 1 (Winter) 45

© 2014 National Council of Juvenile and Family Court Judges

military custody or visitation order. The explanations below will, when appropriate,

emphasize the context of military relocation, that is, reassignments between states or

between a state and a foreign country. They will also focus on deployment, that is, the

transfer to an assignment where dependents are not allowed to accompany the SM.

FIRST ISSUES

In terms of time sequence, the first issue that is usually presented in a custody case

involving a parent with military duties is the possible detrimental effect which status

may have on custodial rights and responsibilities. Military personnel are constrained by

a host of limiting circumstances that often give judges pause in granting or denying

custody. There is, most obviously, the possibility of deployment of Major Jake Green into

a hostile fire zone, a transfer to a peacekeeping unit, or assignment to a non-combatant

evacuation mission when a foreign country is in upheaval. Jake may also be sent off to

temporary duty (TDY) to a different military base, a different state, or even another

nation for a limited time. His mission might be to receive instruction (such as an

advanced course at the Naval Justice School for a judge advocate officer, or a demolition

course for a Navy SEAL). He might be assigned as a participant or observer in a joint

exercise, such as the Bright Star exercise in Egypt in which American military forces

participate, or a training mission abroad to provide instruction for foreign national

troops. Likewise, Jake could be ordered to an unaccompanied tour in a remote assign-

ment, such as Incirlik Air Base in Turkey, or Camp Red Cloud near the Demilitarized

Zone in South Korea. None of these assignments permits the children to accompany the

servicemember.

Military duties often place significant obstacles in the way of the SM seeking

custody. The mobility that characterizes military life, as well as the military mother’s

conduct, were the focus of the appellate court’s concerns in Schmalhofer v. Schmalhofer,1a

2003 Tennessee Court of Appeals case. There the SM-mother received custody at the time

of divorce, based partly on the benefit to the child in remaining in the same surroundings

(Tennessee) rather than moving to Pennsylvania with the nonmilitary father. While the

appeal was pending, the father petitioned the appellate court to consider the following

post-judgment facts: 1) the mother had remarried; 2) her new husband was also a member

of the armed forces; and 3) she and the new husband wanted to accept orders to the

United Kingdom, taking the child with them.

In reversing the trial judge’s custody award to the mother, the appellate court

focused on stability and family surroundings. No relatives of the mother lived in

Tennessee; her extended family lived in Jamaica and her mother lived in New Jersey,

whereas the father’s extended family lived in Pennsylvania, his state of residence.

Part of the appeals court opinion focused on the mother’s vague testimony about

future assignments and relocations, even though the father testified that, for as long as she

1 Schmalhofer v. Schmalhofer, 2003 Tenn. App. LEXIS 810 (Tenn. Ct. App. Nov. 17, 2003). See

also Hayes v. Gallacher, 115 Nev. 1, 972 P.2d 1138 (1999), treated in detail below.

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