Child custody proceedings, whether incident to a divorce or if the parents were never married, can be complicated and emotional. Child custody when one parent is in the military, whether active duty, reservist, or national guard, may add an additional layer of complication.
Generally, the court is required to make a “best interests” determination when ordering a parenting plan. Family Code §3011 provides a non-exhaustive list of factors that the court must consider in making a best interests determination. Some factors include but are not limited to the health, safety, and welfare of the child, a history of abuse, and the nature and amount of contact the child has with the parents. A parent’s military service could be relevant to some of these factors, especially the factor regarding the nature and amount of contact between the military parent and child. For example, a military parent has no control over their schedule or whether they will be deployed, mobilized, or temporarily reassigned (hereinafter referred to as “temporary absence”). Military members are often given minimal notice of an impending temporary absence. Does this mean that this parent is at risk of losing custody of their child due to this unpredictability? What happens if a military parent is noticed that they will be temporarily absent and they will be unable to exercise their parenting time with their child? Does child support change when the parenting time is modified in such circumstances? These are all questions that can be answered by a California family law attorney knowledgeable in the areas of child custody, child support, and the effects of a military members’ temporary absence on those issues.
In such situations, it is usually best for all involved, including the child, for the parents to agree to a temporary modification of the current parenting plan where necessary. If the military parent temporarily reassigned is unable to exercise the parenting plan as currently ordered, the parents can modify the order to account for the temporary absence. For example, let’s look at a situation where the military parent is deploying for a few months. In this scenario, the current order has the military parent exercising parenting time every other weekend, which they cannot do when on deployment. The parents may agree to temporarily modify the custody order to remove the weekend parenting time and replace it with additional virtual and telephonic visitation while the parent is deployed. This ensures that the parent and child maintain frequent and continuing contact, as available in the particular situation. In another scenario, let’s say the military parent is the primary caregiver. The parents may agree that the child will reside with their non-custodial parent while the other parent is unable due to their temporary reassignment, mobilization, or deployment. Again, while it is generally best for the parents to agree on a temporary modification in such situations, it is important to remember that any agreed-upon modifications should be drafted by a licensed attorney into a stipulation and filed with the court so that it becomes a court order. It is also crucial that any stipulation specifically states that these modifications are temporary, and the prior order will become effective once the military parent returns.
Where the parents need court intervention or want more information on what the law is in such situations, Family Code §3047 is designed just for such purposes. This section makes it clear that for purposes of modifying a custody order, a parent cannot solely rely on the other parent’s absence, relocation, or failure to comply with custody and visitation orders if due to their “activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.” (Fam. Code §3047, subd. (a).) This means that a parent cannot use a military parent’s temporary absence in such situations as the sole basis to modify a custody order.
Family Code §3047 also states that any orders made by the court in response to a military parent’s temporary absence for deployment, activation, or temporary reassignment are “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.” (Fam. Code §3047, subd. (b)(1).) The order is reviewed when the military parent returns and there is a presumption that the custody order will revert to the order prior to the modification. (Fam. Code §3047, subd. (b)(2).) This presumption means that if the non-military parent objects to the reimplementation of the prior order, they must show that such reimplementation would not be in the child’s best interests. (Id.) But, again, as previously stated, the mere absence of the military parent that resulted in the modification is not sufficient on its own. (Family Code §3047, subd. (a).)
When ordering a temporary modification to the custody order due to a military parent’s deployment, mobilization, or temporary duty, the court must ensure that such temporary orders allow for “frequent and continuing contact with the child by means that are reasonably available.” (Family Code §3047, subd. (b)(3)(A).) Additionally, the military parent who will be absent may request that the court grants visitation to a stepparent, grandparent, or other family member. There are findings that the court must make for such orders, which are included in Family Code §3047(b)(3)(B).
As previously noted, the military often provides minimal notice to the military parent of an upcoming deployment, mobilization, or temporary reassignment. Such minimal notice is difficult when dealing with the family court system where hearings are often scheduled months out. In fact, the only way to get a quick modification to custody orders is to file an ex parte request for order, which requires a showing that the child will face “immediate danger or irreparable harm” if the modification is not made. (Cal. Rule of Court, rule 5.151, subd. (b)(1).) This is a steep burden that is met only in more extreme circumstances. The legislature understood this when drafting Family Code §3047(c). In such situations, upon motion of the party, the court must set an expedited hearing on the matter before the deployment, mobilization, or temporary reassignment commences. If not possible, the court must allow the military parent to present testimony and evidence and participate in court-ordered custody mediation electronically, such as by phone, video conference, or online.
A common question is whether California loses jurisdiction over child custody of the minor child if temporary orders are issued in such a scenario and the parent with temporary custody lives outside California or relocates outside California during the military parent’s absence. Family Code §3047(e) makes it clear that a minor child’s relocation outside of California under this section is deemed a “temporary absence” and that California retains exclusive and continuing jurisdiction over the child. Furthermore, Family Code §3047(d) states that when custody orders are modified under this section and the non-temporarily absent parent relocates from California with the child, California does not lose jurisdiction over the custody proceedings, including to later determine custody or parenting time, solely on this basis. This all means that the military parent will be able to file a motion in the same court that issued the prior custody orders upon their return to reimplement the parenting plan that was in place before they were temporarily absent by virtue of their military status. This is true regardless of whether the other parent relocated with the child outside of California.
Child support is arguably one of the most heavily regulated areas of family law. The California state legislature mandates the use of a statewide formula to calculate guideline child support. The Dissomaster is used for this purpose. Factors included in this formula include each parent’s income, deductions, tax filing status, and timeshare. What happens to the support order when the timeshare changes due to a deployment, activation, or temporary reassignment? Unless one of the parties takes affirmative action to modify the order, by filing the appropriate request or stipulating a modification, the order remains in effect.
In the case where a reservist or National Guard member is activated, they can file specific forms requesting such modification whether their child support is being enforced by the Department of Child Support Services or through family court. These specific forms are used in such cases because National Guard and reserve members often face a change in income when activated to active-duty status. Where this results in a decrease in income, the now active-duty guardsman or reservist may want to take these steps to have support recalculated based on their income while on active-duty status.
In the case of an active-duty military member who deploys, a modification request involves filing a request for order with DCSS or the family court, again, depending on which entity has jurisdiction over child support. The filing reserves the court’s ability to retroactively modify child support back to the first of the month after the request is filed. Given that an already active-duty military member generally makes more money on deployment, it is likely the non-deploying or non-military parent would make this request.
Child custody and child support issues can be emotionally and legally complicated, especially when dealing with one or more military parents. Family Code §3047 is intended to address issues that military parents encounter when a deployment, temporary reassignment, or mobilization means that they cannot exercise their custody or visitation pursuant to current orders. There are also steps that one may want to take when there is going to be a change in income as a result of a deployment, temporary reassignment, or mobilization. As shown herein, it is important to understand these protections and the procedures for modifying a current custody or child support order in such situations.
Let our team of California divorce attorneys at Cage & Miles, LLP help you navigate the often strenuous situations surrounding child custody and support that can result from a military parent's temporary absence. Please do not hesitate to contact our offices today to schedule a consultation at 858-258-5766.