Military Family Law and Child Custody Information

While it is common knowledge that around half of all marriages end in divorce, what many people do not know is that the rate is slightly higher for members of the Armed Forces. As the rate of military divorces increases, so does the number of child custody cases, and this has brought issues specific to military service to the forefront.

Deployment and child custody

In the past, military service members would sometimes come home from deployment to find that their child custody orders had been changed because of past deployments and the possibility of deployment in the future. A military member who is fighting abroad could come home to fight yet another battle over custody, being put into the position to have to decide between their children and their commitment to serve.

The “best interests of the child”

In New Mexico, the custody standard is based on what is in the best interests of the child. The judge makes the determination of “best interest” based on many factors, including the parents’ wishes, the relationship of the child with each parent, and each parent’s ability to provide the child with a stable family and home environment.

Naturally, military service sometimes includes the possibility of deployment somewhere else for a prolonged period of time. It can be argued that it is not in the child’s best interest when primary custody is awarded to a military parent because deployment could disrupt the child’s routine and cause instability. In fact, many civilian parents have used this argument to get a child custody order modified. This is an issue that has come to the forefront in recent years, as it is also viewed by many as unfair to military parents because they are risking their lives abroad and being penalized at home for it.

The Servicemember’s Civil Relief Act

In response to the special situations that service and deployment can cause a military member, the federal government passed the Servicemember’s Civil Relief Act (SCRA) in 2003. This act postpones or suspends some civil obligations while a military member is on active duty. In 2008, the act was amended, and one of the changes made prohibited family courts from permanently changing a custody order while a military member is deployed.
Despite the passing of SCRA, family courts still consider the possibility of deployment when making child custody decisions in many states, New Mexico included. This has led to other efforts by lawmakers, such as the Servicemember Family Protection Act, which was introduced in 2011 but still has not been signed into law. This proposed law would not allow judges in family court to consider deployment in child custody determinations at all. Additionally, it would expand the definition of the term “deployment” to include humanitarian missions and unoccupied overseas tours.
In 2014, New Mexico passed the “Service Member Child Custody Act” into law. This act also bans the modification of child custody laws while a service member is deployed, but it is not “self-enforcing.” This means that a military member who receives notice of an attempt at child custody change while overseas will still have to take some action and notify the court of his or her deployment to prevent any changes. In addition, the act gave deployed military parents the ability to create a temporary, written custody agreement with civilian parents that terminates after the deployment ends without the need for a court hearing.
If you are a military member or are the spouse of someone who is in the service, it can complicate a divorce and all the issues that come along with it. Speak to an experienced family law attorney today to ensure all of your rights and interests are protected.