Parents who are members of the Armed Services sometimes face unique challenges. You may expect to move multiple times during your career and face deployments for weeks, months, or even years. This blog provides information as to common custody issues for parents in the military and who are divorced or otherwise no longer living with the other parent.
Understanding Custody Laws for Military Parents
In most ways, your custody case is the same as any other. You will generally be expected to attempt mediation and come up with parenting plan that details the specifics of your parenting arrangement. The parenting plan commonly includes details as to the regular weekly parenting schedule, vacation time with the children, and how holidays are alternated between the parents, among other details. If you are stationed in one location and are not deployable, your parenting plan and custody order may look like any other.
Change in Duty Station and Removal
However, what if you are facing a change in duty station or are otherwise looking to move? While the process can vary from state to state, you generally have to get court permission to move your children to another state if a custody order has already been entered. In Nebraska, you generally do this by filing a modification action and asking for what is called “removal” or permission to move the children out of state. If both parents are in agreement with the move, it is mostly a matter of completing the required paperwork and meeting the formalities required by the Court process to modify your court order to allow the move.
If the parents are not in agreement as to the move, then you have a contested custody case with a request for a “removal” out of state. Your modification action would specifically include language that you are asking for permission to move the children out of state with you.
While the Judge may appreciate your service and understand that the move is not by choice, the Court may not be willing to allow the children to move when the other parent objects. In Nebraska, there are two parts to a removal case. One is showing that there is a legitimate reason for the move. If you are being relocated, then you will likely have no issue in meeting this first prong. However, it is the parent wishing to move that also has the burden of meeting the second prong. The second prong is whether the move is in the “best interests” of the minor children. To determine what is the “best interests” when a parent wants to relocate the minor children to another state, the Court looks at a number of factors often called the “Farnsworth” factors. These factors are named after one of the more famous cases on removal in Nebraska called Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). The first factor is the reason the parent is seeking to move or opposing the move. The second is whether the move will enhance the quality of life for the children and the moving parent. The third is how the move will affect the contact between the children and the other parent. Caselaw goes further into how each of these factors is defined by the Courts.
The reality is that the burden is on the parent who is wanting to move the children to prove that the move is in the children’s best interests. If the children are doing well here in Nebraska, it can be an uphill battle to convince the Court to allow the children to move over the other parent’s objection. This is true even if your request to move is driven by a change of duty station. The odds of being successful in any given case depend on the specifics of your facts and situation. If you are already the custodial parent, the odds of you being granted permission to take the children with you when you are relocated are high compared to if the non-custodial parent is the one asking to allow the relocation.
Keep in mind that you need court permission to move the children out of state. You don’t need court permission for a parent to move. Thus, the Court can’t stop the parent from moving, only from moving the children with. However, you may need to update the terms of your parenting plan to something that logistically makes sense once one parent moves.
For children that have not yet begun kindergarten or are home-schooled, you may be able to exercise a joint physical custody schedule even if there is a large physical distance between the parents. I have seen joint physical custody even between the United States and Japan for a child that hasn’t entered kindergarten.
However, once children start school, the distance is generally too great to continue with a joint physical custody schedule when the parents are living in two different states or even two different countries. The non-custodial parent can still be granted frequent parenting time with the minor children. This can include daily phone calls or Facetime and frequent visits by the non-custodial to the children’s location (if the non-custodial parent’s schedule allows). It generally also includes alternating major holidays and a block of time in the summer when school is not in session.
As contested cases can take many months (and sometimes even more than a year) to resolve, it is important to move forward with your modification action relatively quickly if you expect to be transferred out of state and want to request that the Court grant removal.
The Impact of Deployments on Custody Arrangements
If you are facing a deployment, you likely can’t bring your children with you. Especially for short deployments when the parents can reach some agreement, you may help protect your children by executing a temporary delegation of parental powers.
This document is not filed with the Court but just allows the custodial parent to move forward with necessary actions for school and health care while you are away for a short period of time. It can be especially useful if the parents have joint legal custody and the deployed parent may be unable to be contacted for significant periods of time while deployed. Custodial parents who do more extensive travel to remote areas for work or pleasure also use this same form.
Additional Reading: Temporary Delegation of Parental Powers
While all states have some method of addressing deployment issues, the State of Nebraska is one of the states that has adopted the Uniform Deployed Parents Custody and Visitation Act, Nebraska Revised Statutes Section 43-4601 through section 43-4630.
To invoke the Act, the deploying parent must give the other parent notice within 7 days of learning of their pending deployment. The deploying parent must also suggest a plan to remain in place while the parent is deployed. The Act describes specifically what this plan must look like, including that it must be signed by both parents. Nebraska Revised Statute Section 43-4608 goes into the plan’s detail. Generally, the plan must be filed within the custody court case after both parents have signed.
The Act allows the deployed parent to delegate some of their parental responsibilities to a third party. This could include things like the deployed parent’s family members (such as the grandparents) exercising the deployed parent’s parenting time while the parent is deployed.
The Act is specific that the Court can’t consider the parent’s past deployment or possible future deployment in itself when determining the best interests of the child. However, the Court can consider any significant impact the deployment(s) may have on the child. Neb. Rev. Stat. Section 43-4607. This can be a helpful piece to argue if the Judge is not overly familiar with this Act.
If the parents cannot reach an agreement as to the plan, either parent can request the Court to enter an order to decide the parenting time while the parent is deployed. This is often brought by filing a motion within the existing custody case. The Court then can enter a temporary order that complies with the Act. Nebraska Revised Statute Section 43-4621 goes into details as to what this temporary order should address. Again, this can include delegating some of the parental responsibilities to a family member, such as granting time to a grandparent.
The plan under the Act generally terminates soon after the deployment ends and the parent can resume normal parenting time.
Keep in mind that your financial support obligations may temporarily increase, including an increase in child support, while you are deployed, especially if you otherwise share joint physical custody but are unable to do so while deployed.
Benefits Due to Service
Many Servicemembers often have benefits available for their children. This can include things like health and dental benefits, affordable child care services, and the ability to go on base to use commissary and recreational facilities. Your custody order may include terms so that the children of a servicemember can continue to qualify and use these benefits even while the servicemember parent is away.
Other Financial Considerations
If parents share joint physical custody, the Court may not order child support or it may be ordered at a very reduced amount. Parents who are servicemembers often ask how their benefits are treated for purposes of calculating child support. While the treatment can vary from state to state, and can sometimes even vary on the specifics of your case, there is generally a formula for calculating child support.
In Nebraska, you are generally given a credit in the child support formula (called the Child Support Guidelines) for your health insurance premium costs (if any) as well as the additional premium costs (if any) to add your children to your health insurance plan. You are generally given a credit for contributions to your TSP, which is often capped at up to a 4% credit in the Nebraska Child Support Guidelines. If you have other children to support, you are also given a credit for support of those children. If you live far away and there are travel costs to have parenting time, the Court can give you a credit for these travel costs. Especially when a parent is stationed overseas, the child support can be significantly reduced due to the costs of international travel to exercise parenting time. These credits can significantly decrease your child support obligation.
On the other hand, common benefits to Servicemembers are generally included as part of “income” and can increase your child support obligation significantly. In most cases, any monthly VA benefit payment is included as income for calculating child support. In Nebraska, the funds you receive for BAH and BAS are also included as part of your income in the child support calculation even though they are not generally considered income for IRS purposes. If you are receiving VA payments, BAH, or BAS, these benefits can significantly increase your income for purposes of calculating child support in Nebraska.
The SCRA: Protections for Fair Litigation for Service Members
The Servicemembers Civil Relief Act (SCRA) provides a wide array of benefits and protections for servicemembers. In the custody action context, one of the most important protections is the ability to postpone court proceedings while on active duty. If you invoke this Act, this may help give you the extra time that you need to prepare or appear for Court if an action is brought while you are on active duty.
How State Laws Vary: Custody Considerations Across Jurisdictions and Choice of Law
Some servicemembers are relocated relatively frequently. Laws related to custody vary depending on the state. What state’s laws apply when the parents are in two different locations or the children move after the custody order is entered?
While there are many exceptions to the rule, the general rule is that the state’s laws where the children are located when the original custody order is entered are the state laws that apply. Thus, if the children are living in Nebraska, then the original custody action would need to be brought in Nebraska and the laws of the State of Nebraska apply. Even if one parent moves out of state, the state laws of the original order continue to apply and the original court continues to handle the custody case.
However, if both parents and the children move out of state, then the court order can be transferred to where the children are now residing. Keep in mind that the parent generally had to get court permission to move the children to the new state.
An action to file the court order where the children are now residing is called “registering” the court order in the new state. When a court order is registered in a new state, then many of the new state’s laws apply while some of the original state’s laws still apply. There is a whole set of rules called “Choice of Law” rules that apply to help determine which state’s laws apply.
For example, when a custody order is registered in a new state, then the procedural rules of the new state generally apply. Thus, how to file a modification action and serve the action are generally governed under the new state’s rules. However, the age of majority for child support purposes from the original state still applies. Thus, if your original custody order states child support terminates at 18 years old, then the child support obligation still terminates at 18 even if you later register the order in a state like Nebraska that generally orders child support to continue until the child is 19 years old. Thus, you can’t lengthen the years of child support by moving and registering the order in a new state.
There can also be some unforeseen consequences when registering a custody order in a new state. For example, some states will order college tuition expenses and some will not. If your original order contained a clause that your new state won’t enforce, a once valuable benefit can become unenforceable. Thus, if your new state won’t honor a provision ordering college tuition expenses over the parent’s objection, a valuable benefit for the children may be effectively lost when you register the order in the new state.
The Role of Settlement and Mediation in Custody Disputes for Servicemembers
Most courts now require an attempt at mediation to resolve the custody and parenting time issues before going to trial. Some parents are also able to utilize mediation to resolves their disputes before legal action is even filed, and in some places an attempt at mediation is REQUIRED before you can even file a court action.
A good mediator can help you find middle ground and help you think of alternative solutions that you may not have found on your own.
Your attorney is also a great resource in helping to reach a fair agreement. Your attorney can generally advise you as to what your rights are and as to how the courts have handled issues or cases similar to your own. Most cases do settle before going to trial. Your attorney is often your number one resource in helping you reach a fair settlement. If you and the other parent are already in agreement, the attorney may help you draft the paperwork necessary to complete your court action without the need for a court hearing. You can skip the mediation and contested court process entirely.
Custody Battles: Legal Resources Available for Military Families
Many offline and online resources are available to service members and their families struggling with custody disagreements. One solid resource specific to servicemembers is Military OneSource, which is an official website of the Department of Defense.
Another great resource for servicemembers in Nebraska is the information available on the Nebraska Supreme Court’s website. While not specific to servicemembers, it contains a lot of valuable information regarding custody cases and child support issues for all families.
The Importance of Legal Representation: Finding a Custody Attorney Who Understands Military Issues
As there are special considerations for servicemembers, from child support to custody disputes, hiring an attorney with experience in military custody cases is helpful in securing a positive outcome for you and your children.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child custody, child support case, or divorce case in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Douglas, and Sarpy), contact our office to set up a consultation.