Mark E. Sullivan is today's Guest Author. This is an article about military parents who have sole or primary custody, and how military absences can affect their custody orders and their military family care plans. The first section of the article will cover the ground rules for protecting and advising a military custodian as to mobilization, sea duty, deployments, and other military absences. Please see the bottom of this post for Mr. Sullivan's Author Bio
[The previous two sections of this article covered the ground rules for protecting and advising a military custodian, and the danger of adverse court action if the servicemember doesn’t plan ahead. This article concludes with a prescription for avoiding disaster by crafting the court’s custody order with an eye to the future and a plan for who gets custody when the military member is absent.]
It didn’t have to be this, way, of course. There should not be a crisis when a sailor is called to sea duty and he has custody of a minor child. The Defense Department has issued clear instructions as to the responsibilities of servicemembers,10 of commanders11 and of legal assistance attorneys12 on base and at sea in regard to matters involving single parents, custody orders and non-custodial parents who reside elsewhere.
The Navy has undertaken very clear instructions as to duties and responsibilities in these types of cases. The Navy’s regulation on family care plans, OPNAV INSTRUCTION 1740.4D (27 Oct 09), states:
4.b. “Exclusive reliance on a family care plan without the assistance of implementing court orders or written agreements from natural or adoptive parents, non-military personnel or institutions, may result in challenges to custody and/or denial of services by institutions.”
4.c. “When single, domestically separated, and/or divorced Service members with minor children are required to travel unaccompanied for extended periods of time (e.g., training exercises, temporary duty (TEMDU), deployments, and unaccompanied tours), there is a possibility that the other natural or adoptive parent of the minor children, or others with legally enforceable custody rights will challenge the family care plan or existing court orders and seek to create or modify the custody and support status of the Service member's minor children. This action can only be addressed through detailed and thorough planning and action. Single, domestically separated, and divorced Service members with minor children should contact a legal assistance office for advice and assistance in evaluating the effectiveness of their proposed family care plan and complying with any legal formalities necessary to prevent unwanted challenges to custody and support arrangements.”
c. "The family care plan shall include written provisions for:
…(7) Verification of consent from all natural and adoptive parents, and other legal custodians, regarding the planned designation of custody or guardianship of a minor child or written documentation that reasonable efforts have been made to obtain such consent. In the alternative, proof of a court order reflecting that the planned designation is acceptable. Where a separation agreement, court order, or divorce decree addressing child custody and support issues is in force, the family care plan should be consistent with such court agreement, order, or decree."
NAVPERS Form 1720/6 contains the following statement:
9."In the event of my… incapacity, [name, address telephone number] has agreed to assume temporary responsibility for my minor children until… a legal guardian or other custodian is appointed by a court of competent jurisdiction, or until my child(ren)’s noncustodial natural parent assumes custody, whichever occurs first."
The Family Care Plan Checklist at Enclosure (3) of OPNAV INSTRUCTION 1740.4D contains the following information:
2." Family Care plan contains provisions for: …
[ ] Legal review for relocation of minors subject to custody and visitation orders.
[ ] Legal review for relocation of minors without the consent of the natural or adopted parent.
3. Caregiver(s) briefed by Service member on:
[ ]Responsibility under the Family Care Plan.
[ ]Logistical, financial, medical, and legal arrangements.
[ ]Possible challenges to custody, visitation, and support of minor children and adult family members/dependents."
It’s hard to imagine a stronger set of directives or a clearer incentive to take into account the possibility of the non-custodial parent’s return to court to obtain custody (and, as an added bonus, monthly child support by garnishment) when the sailor becomes unavailable to care for the minor child.
There are numerous cases in which the military parent who has custody seizes the moment to craft a comprehensive order which anticipates not only his routine “shore duty” but also his periods of “sea duty.” The might be called a “Plan A/Plan B” situation. Good planning, the advice of a good attorney, and the wisdom of a judge who can see beyond the immediate issue of custody and into the future of the parents’ relationship are what is needed.
Consider the situation where the military parent is to be granted primary or sole custody of the child. When a judge decides, or the parties agree, that a third party (such as a new spouse of the custodian or a grandparent of the child) should replace the non-custodial parent, it makes sense to place appropriate findings for third-party custody in the order (pursuant to appropriate state law, which usually does not favor third-party custody).13 The following is an example of language to insert:
Since Jane Doe is a member of the U.S. Navy and may be deployed in the future on an unaccompanied tour (that is, an assignment where family members are not allowed), her current husband, Ralph Roe, is hereby designated alternate custodian of Jack Doe, the minor child of the parties, in such an event. He shall hold and exercise all the rights and responsibilities of a custodial parent during such a deployment and shall promptly return the child to Jane Doe at the deployment’s end. The above appointment is being made in place of John Doe, the father of Jack Doe. [This clause should be followed by one specifying why the other parent, John Doe, is not fit for alternate custody in the event of military absence, or stating that John Doe has consented to this arrangement, which his signature accompanying the order, or has waived any claim to alternate custody, with appropriate findings as to how he waived his rights.]
While it is always wise to draft the custody order for a military custodian (active duty or Guard/Reserve) with provisions for “Plan B” in case of mobilization or deployment, there is no guarantee that such a provision will be upheld or enforced in court if challenged, especially if it grants custody to a non-parent and the child’s other parent has a change of heart. To make the consent order “airtight,” consider the following checklist:
• Join all necessary parties; those who are left out will complain the loudest!
• Set out the circumstances, environment and living situation of each party, as well as any special facts or needs regarding the children. Do this in detail. The more “specifics,” the stronger your order will be, as against a later challenge that there has been a subsequent change of circumstances.
• Specify in the findings of fact and conclusions of law that the “Plan A” custody arrangements are in the best interest of the children, as is their return after the military custodian’s deployment or mobilization ends.
• State why the return of the children and the “Plan A” environment are in the children’s best interest.
• State that it is in the children’s best interest for them to reside temporarily with the noncustodial parent if there is a mobilization or deployment.
• Research state law to be sure that such “alternate custody plans” are allowed and binding on the noncustodial parent.
* * *
Appendix 1 – Flow Chart for Family Care Plans [Source: Dept. of Defense Instruction 1342.19]
*Mr. Sullivan is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina and is the author of The Military Divorce Handbook (Am. Bar Assn., 2nd Ed. 2011) and many internet resources on military family law issues. A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989. He works with attorneys and judges nationwide as a consultant and an expert witness on military divorce issues in drafting military pension division orders. He can be reached at 919-832-8507 and firstname.lastname@example.org.
Read this series:
9 In re Marriage of Grantham, 698 N.W.2d 140, 2005 Iowa Sup. LEXIS 75 (Iowa 2005). For a contrary result, see Dilley v. Dilley, Chancery No. CH04-195, 2004 Va. Cir. LEXIS 235 (Cir. Ct., Shenandoah Co., Nov. 2, 2004) (trial-level decision granting continued custody to the SM-mother and maternal grandmother despite the mother’s absence overseas, allowing the mother’s stay request, and denying the father’s motion for temporary custody).
10 Enclosure 3, “Procedures,” to Department of Defense Instruction 1342.19 states that -
(2) Each Member shall:
(b) Attempt, to the greatest extent possible, to inform the non-custodial biological or adoptive parent of his or her children, as applicable and as far in advance as practicable, of his or her impending absence due to military orders….
11 The same source, Enclosure 3, “Procedures,” to Department of Defense Instruction 1342.19, provides the following requirements for Navy commanding officers: (3) … Commanders shall: …
e. Inform Members of the overriding authority of State courts to determine child custody arrangements, notwithstanding a family care plan….
f. Advise Members of the risks involved if they are unable or unwilling to contact or gain the consent of the non-custodial biological or adoptive parent if the family care plan would leave the child in the custody of a third party. Strongly encourage them to obtain legal advice as far in advance of the absence as is practicable about the implications of failing to include the noncustodial biological or adoptive parent in the family care plan process. Emphasize that the failure to involve, or at least inform, the non-custodial biological or adoptive parent of custody arrangements in anticipation of an absence can undermine, or even render useless, the family care plan….
g. Encourage Members to seek the assistance of military and community support resources, to include family support centers; legal assistance offices; family program directors, coordinators, and ombudsmen; Service relief organizations; the CEW Readiness Cell; and online resources (e.g., Military OneSource), in the completion of the family care plan.
12 From Enclosure 3, “Procedures,” to Department of Defense Instruction 1342.19 -- 4. LEGAL ASSISTANCE ATTORNEYS. Legal assistance attorneys or other qualified legal counsel shall, when appropriate, ensure their clients receive:
(1) A full explanation of the potential consequences of not including the non-custodial biological or adoptive parent in the creation of a family care plan.
(2) A discussion of appropriate courses of action, to include the benefits of validating temporary custody arrangements and the return of the child to the Member upon the Member’s return, with an appropriate court.
13 Note that some states, at least in contested matters, do not allow for contingent changes of custody. See Dellinger v. Dellinger, 278 Ga. 732, 609 S.E.2d 331 (2004). Be sure to read the case law, understand the contrary cases, and build in as many facts and factors as possible when writing up a consensual contingency for change of custody.