Resolving parenting disputes can be complicated. But it can get even more so if a parent is an active military service member. For one thing, it may be difficult, if not impossible, for the member to appear in court. That’s where the Servicemembers Civil Relief Act (SCRA) comes into play. Under the SCRA, the member has a right to ask that the proceedings be put on hold until they are available to appear.
The Court MUST grant this request, unless the non-service parent can show that the hold was requested solely as a delay tactic or for other improper purposes. Another issue is deciding what state has jurisdiction. For example, a service member may be a resident of Arizona, but be assigned to a base in Washington, while the children reside in an entirely different state. If a member is deployed, parenting orders can be temporarily modified if the deployment would have a material effect on the ability to exercise parental rights. Under appropriate circumstances, the Court may allow the member to delegate their parenting rights to another family member or someone who has a close relationship to the child. As you can imagine, there are lots of other concerns that must be addressed. If you find yourself in this situation, here is what you need to know.
Yes. You have rights under the Servicemembers Civil Relief Act, SCRA 50 U.S.C. 3982(b)(1) CLICK. As long as you have not requested a delay solely for an improper purpose, your request for delay MUST be granted if you provide a letter or communication that:
- States that your current military service impacts your ability to appear; AND,
- States a date upon which you will be able to appear; AND,
- You provide a letter from your commanding officer stating the your military duties prevent your appearance and leave is not authorized at the time of the letter.
No. The Court can only temporarily modify your parenting rights during your deployment, but a final order cannot be entered until 90 days after your deployment ends. Once you receive your orders, the Court can temporarily change parenting time to accommodate your children’s needs during your deployment.
No. The court shall not consider your absence due to current or future deployment as the sole factor supporting a permanent modification.
Yes, on a temporary basis. You must show that the deployment would have a material effect on your ex’s ability to exercise his or her parental rights or maintain parent-child contact. You also may not use the fact of the other parent’s deployment as the sole reason to modify parenting time on a permanent basis. If your child lives the majority of the time with the parent who is being deployed, permanent parenting time orders may not be entered until 90 days after the deployment ends unless your ex agrees to a permanent parenting time modification before that date.
Not necessarily. In Arizona, while the military parent is deployed, they can delegate their parenting time or a portion of it to a child’s family member, including a stepparent, or to another person who is not the child’s parent, but has a close and substantial relationship to your child. The Court, however, must determine this is in your child’s best interests.
Delegation of parenting time will not be permitted to a person who would be subject to limitations on parenting time, for example, if the person had committed domestic violence or was otherwise unfit.
The Court must include an order for a specific transition schedule to return to the redeployment order within ten days after the deployment ends, taking into account the child’s best interests.
If your ex is able to take leave, be FLEXIBLE with permitting contact, even if it means you have to transport or arrange for transporting the children within the United States. Maintain video and other forms of contact as frequently as possible. Encourage as much contact as possible. This is usually in your children’s best interests. It will also influence the Court if a petition to modify your parenting rights is brought by your ex after their return.
You can check out the Military Divorce Handbook (American Bar Assn. 3rd Edition, 2019, by Mark E. Sullivan.)
For the SCRA, see a Judge’s Guide to the Servicemembers Civil Relief Act .
Take a look at the Uniform Deployed Parents Custody and Visitation Act (UDPCVAP), passed in 14 states (not Arizona).
Message from The McCarthy Law Firm
The lawyers at the McCarthy Law Firm are knowledgeable about the unique issues military families face, including parenting issues, child support, military, retirement, health insurance and other benefits. In recognition of your service to our country, we offer a no charge initial consultation to both service members and their spouses. Please call us at 520-623-0341 to explore your options. Turning Stress Into Solutions ™.
