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Custody for Military Parents: Part 1 of 3

Parents Stationed in the US

If you are a parent and a member of the US Military, we at Woodruff Family Law Group thank you for your service! If you are not with your child’s other parent, you are probably concerned about what your military service will mean for your custody agreement or custody battle. Being in the military limits where you can live, when you can have leave, and what your daily schedule will be. How will that impact your children? What will a court think about those impacts? Fortunately, the federal and North Carolina state governments have acted to provide you with some protections in these situations.

If you are trying to establish custody as a military parent, you need to consult a family law attorney – your JAGs on base can’t help you with a civilian matter like custody. It is always best to come to an agreement with your child’s other parent, if possible, and that is usually easiest to do before issues arise. When you join the military, you likely created a Family Care Plan. This plan can help guide your custody agreement, but it doesn’t have the force of the court behind it. If you are just establishing a new custody arrangement, be sure that your agreement or order includes what will happen in different military scenarios like relocation or deployment. If you are already at that point, then an agreement is still best, but you may need to go back to court to determine your custody rights.

If you do end up in court, the Service Member’s Civil Relief Act (SCRA) is a federal law that will provide you some protections. North Carolina has incorporated that law and expanded it to include members of the National Guard serving in or from North Carolina who have been on active duty for more than 30 consecutive days (N.C.G.S. §127-B, Article 4). The SCRA gives active-duty service members extra time to reply to legal papers. It allows a delay of up to 90 days for custody hearings until you can make arrangements with the military to be present at that hearing. Courts will balance your need to be present to protect your rights and your child’s needs for stability as soon as possible and may enter a short-term temporary custody order in your absence.

North Carolina also has its own protections for service members specifically for custody cases. N.C.G.S. § 50-13.2(f) says that “In a proceeding for custody of a minor child of a service member, a court may not consider a parent’s past deployment or possible future deployment as the only basis in determining the best interest of the child.” The courts can consider any significant, actual impacts on your child from your service, but they can’t make decisions just because they think you MIGHT be deployed later and that MIGHT impact your child at some unspecified future time. This provides some protection, but you should still be prepared to show that you are willing and able to mitigate any possible negative impacts on your child that your military service could create.

Your rights as a parent don’t end when you sign up for the military, and there are protections to keep you from having to sacrifice those rights while you’re already sacrificing for your country. A family law attorney can help make sure that you use all of the tools available to you to get the best custody or visitation schedule with your children possible.