In California, the courts make child custody decisions based on the best interest of the child. In evaluating the best interest of the child, courts consider many factors, including the child’s age, educational needs, sibling relationships, social ties, and relationship with each parent.
Unless there are exceptional circumstances, like domestic violence, substance abuse, or other inability to parent, the court wants to ensure the child has frequent and continuing contact with each parent and the ability to maintain a relationship with both parents. See California Family Code sections 3011 and 3020.
The court has “the widest discretion” – meaning it has a lot of flexibility – to make orders for child custody that are in the child’s best interest. See California Family Code section 3040(e).
It’s very important to be able to show the court that the parenting plan you are asking for is in the best interest of your child. An experienced San Diego Family Law attorney can help you present your case in the most effective way.
Military service alone is not a reason to give custody of a child to the other parent. However, if the military parent will be frequently away from home – on sea duty in the Navy, for example – the court may consider this as a factor in the child’s stability and in the parent’s ability to care for the child.
If both parents live in the same area, the court may order a parenting plan in which the children go back and forth between homes – every few days, or weekly, for example. If one parent has moved to another state, including pursuant to military orders, the court may order that the children live with one parent during the school year and visit with the other parent during school holidays.
The court may order that the second parent have the children for a certain number of weeks during the summer, and/or over winter and spring breaks, for example. The court will make these orders with the goal of ensuring frequent and continuing contact with each parent pursuant to Family Code section 3020. It is imperative to consult with a San Diego Family Law attorney to help you to request a parenting plan that best meets your child’s and family’s needs.
While the best interest of the child is first priority, California law also protects active-duty military parents. California Family Code section 3047 outlines several safeguards for military parents whose parenting is affected by their service.
Under Family Code section 3047, 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.
In other words, if a parent must move a long distance away, or his/her military service otherwise has an impact on the servicemember’s ability to exercise custody or visitation rights, that in itself is not enough reason to make a permanent change to custody orders.
If a parent with sole or shared physical custody of a child receives temporary duty, deployment, or mobilization orders from the military that require that parent to move a substantial distance from their residence, or those orders otherwise have a significant effect on the ability of the parent to exercise custody or visitation rights, any necessary modification the court makes to the custody orders shall be considered a temporary one.
In making temporary orders, the court must consider orders to ensure that the relocating parent can maintain frequent and continuing contact with the child. The orders may include an in-person visitation schedule, or “virtual visitation” through video calls or phone calls if in-person contact is not possible.
Once the service member returns from deployment or mobilization, the custody order should go back to the order that was in place before the temporary modification, unless the court determines it is not in the best interest of the child.
Upon a request by the relocating parent, the court may grant reasonable visitation rights to a stepparent, grandparent, or other family member under certain circumstances. To make an order for family member visitation, the court has to 1) find that there is a preexisting relationship and a bond between the child and the family member, 2) find that visitation with the family member will facilitate the child’s contact with the relocating parent, and 3) balance the interest of the child in having visitation with the family member against the rights of the parents to exercise parental authority (that is, the rights of both parents to decide whom the child spends time with).
If a parent is unable to attend a regularly scheduled hearing on custody and visitation because of that parent’s deployment, mobilization, or temporary duty, the court can either 1) hold an expedited hearing to determine custody and visitation issues prior to the parent’s departure, or 2) allow the parent to participate in both child custody mediation and the hearing by electronic means – phone, video conference, or internet.
In summary, Family Code section 3047 is intended to provide a “fair, efficient, and expeditious process” to resolve custody issues when a parent receives military orders. In enacting this law, the California legislature intended to “ensure that parties who serve in the military are not penalized for their service by a delay in appropriate access to their children.” A San Diego Family Law attorney with experience dealing with complicated military issues can help you ensure the court considers Section 3047 when it makes child custody orders in your case.
Child custody determinations can be complicated and difficult. It is important to present the right evidence to the court regarding the best interests of your child. When a parent is in the military, it is even more important to be able to show the court what is in the best interest of the child regarding contact with that parent, whether you are the deploying military parent or the non-military parent who is staying at home. For these reasons, it is important to have a San Diego Family Law attorney who understands these intricacies and can advocate on your behalf.