Child Custody and Active Military Parents

F and M are both in the United States Air Force. They married and had two sons.

In 2013, while both were deployed to South Carolina, they ended their marriage. The court awarded both parents joint physical and legal custody. Shortly thereafter, F was re-deployed to Washington D.C. He would visit the boys every month.

In 2014, M was to be deployed to Korea for a year. Just before her deployment, M petitioned the court to allow M’s Mother in Nevada to take care of the boys while she was in Korea. She later agreed that the boys would stay with F. At the time, M believed that when she returned from Korea, custody of the boys would return to her.

In 2015, when her year in Korea was over, M was to be transferred to Wyoming. She petitioned the court to have the children returned to her. F now lived in Florida with the boys, and he contested M’s petition. At trial, the parties agreed that F would maintain physical custody of the boys in Florida, while M would have custody of them during the summer and winter vacation periods.

In the summer of 2015, when the boys came for their summer visit, M petitioned the court to regain full custody of them for the 2015-2016 school year. A mediator was hired to determine what was in the best interests of the children. The mediator determined that the boys were better placed with M because she was more willing than F to give access to the boys to F while they were in her custody. There had been times in the past when F had not been willing to cooperate with M regarding visitation. Ultimately, however, the boys were returned to their father in Florida.

M appealed. The Appellate Court agreed with M.

Section 3047 of the Family Code was designed specifically for active military parents and child custody issues. The section states, “[I]f a party with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military that require the party to move a substantial distance from his or her residence or otherwise has a material effect on the ability of the party to exercise custody or visitation rights, any necessary modification of the existing custody order shall be deemed a temporary custody order made without prejudice, which shall be subject to review and reconsideration upon the return of the party from military deployment, mobilization, or temporary duty.”

Secondarily the section states, “[I]f the temporary order is reviewed upon return of the party from military deployment, mobilization, or temporary duty, 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. The court shall not, as part of its review of the temporary order upon the return of the deploying party, order a child custody evaluation under Section 3111 of this code or Section 730 of the Evidence Code, unless the party opposing reversion of the order makes a prima facie showing that reversion is not in the best interest of the child.”

In other words, when M was deployed to Korea, she did not lose her right to custody, and the boys should have been returned to her upon her return. Further since it was shown that she was more willing to work with F regarding visitations, than F was with her, F could show no reason for any custody evaluation.

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