When a divorce parent is in the military, there may be special issues to consider in regards to custody and visitation. A parent might wonder if a custody order can be modified due to military duty, how to get visitation if they are away due to military duty, and what happens if a parent cannot attend a hearing due to military duty. Read on for information on specials issues regarding military custody and visitation rights in California.
If a parent would like to modify a custody order because of military duty, a parent’s absence, relocation, or failure to follow a custody or visitation order due to activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state is not sufficient by itself, to justify a modification of the order. However, a custody order can be modified if the military assignment requires a parent who has sole or joint physical custody to move a significant distance from their home, or otherwise has a significant effect on their ability to use their custody or visitation rights.
If a custody order is modified, then the modification of the order will be considered a temporary custody order which will be reconsidered upon the person’s return. In such cases the judge will assume that the temporary, modified custody order will change back to the original order that was in place before the modification, unless the judge determines that it is not in the best interest of the child. In the temporary custody order, the judge should do whatever is appropriate to make sure that the moving parent can keep regular and continuing contact with the child in reasonable ways.
If a parent with sole or joint custody has moved far away due to military duty, the parent can still get visitation if they meet certain conditions. The relocating parent can file legal papers to request visitation rights to a step-parent, grandparent, or other family member. The judge can grant the visitation if the judge does all of the following:
- Believes that there is a pre-existing relationship and bond between the family member and the child, ensuring that visitation is in the child’s best interest
- Believes that the visitation will help the child stay in contact with the absent parent
- Balances the interest of the child in having visitation with the family member against the right of the parents to use their parental authority.
Some parents wonder what will happen if military duty prevents them from attending a hearing. If a person’s deployment, mobilization, or temporary duty will affect their ability to be at a regularly scheduled hearing in person, the judge will do either of the following depending on what the parent asks for:
- Move up the hearing to determine custody and visitation issues before s/he has to leave, or;
- Allow the parent to present testimony and evidence and participate in court-ordered child custody mediation by telephone, video teleconferencing, or the internet, if these are reasonably available to the judge and the process is fair to all parties.