Child Custody Military Parent | Armed Forces Legal Issues in Family Law
Members of the Armed Services face unique legal challenges in Family Law, especially when away on deployment. Under Colorado and Federal Law, numerous legal protections are afforded to servicemembers in Family Law Matters. Our Fort Collins divorce and child custody attorneys can explain these protections and much more if you are a member of our Armed Services.
Service Members Relief Act (SCRA)
The SCRA Federal Statute governs the general rights of service members when under deployment. As participation in legal proceedings is significantly impaired when a service member is away on deployment, the Act serves to provide some relief to those challenges. Under the SCRA, judges may grant temporary stays of legal proceedings and relief from default judgments, including those involving custody matters.
Because the SCRA has its limitations, other Acts have been drafted to address the critical need for further resolution to child custody issues faced by deployed service members. Numerous state statutes and the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) aim to address some of those critical needs.
The UDPCVA addresses critical issues common to parents who are deployed in the military or national services surrounding child custody and visitation matters.
Special legal protections have been implemented exclusively for military parents who are deployed for a period of at least ninety (90) days but less than eighteen (18) months, under military orders that:
- Must be unaccompanied;
- Prohibit independent travel;
- Prohibit the relocation of family members to the location where the service member is deployed.
The UDPCVA applies to all members of the uniformed services, active and reserve alike, including the Army, Navy, Air Force, Marine Corps, Coast Guard of the United States, the Merchant Marine, Public Health Service, NOAA, and state National Guard units.
The Act incorporates numerous provisions including, but not limited to, notice requirements for Family Law matters brought before the Court, establishment that a parent’s home jurisdiction has not changed as a result of deployment, and the prohibition against using a parent’s deployment as the singular factor for determinations of child custody under the best interest factors.
While not all states have adopted the UDPCVA, it was adopted by Colorado in May of 2013.
Under Colorado Revised Statutes 14-13-102.7, a child’s home state jurisdiction is defined by the UCCJEA as the place where the child has resided for the last six months.
Such a definition poses jurisdictional challenges for child custody matters where a military parent has experienced periods of relocation during their temporary deployment.
In an effort to protect military parents from the adverse impact such relocations may impose on their rights as parents in a child custody matter, Colorado enacted House Bill 08-1176, which provides that Colorado will not release jurisdiction as the child’s Home State over a child who has lived temporarily out of state during the deployment of their primary residential parent.
Many parenting time orders have built-in provisions regarding the right to delegate parenting time when a parent is not at home and the right of first refusal allowing the other parent the first option of granting child care before the absent parent seeks a child care provider.
Such situations are common for parents who are in the Military. Fortunately, the Courts have been supportive of a military parent’s right to delegate their parenting time to their spouse, rather than automatically having the child reside with the other parent during the Military parent’s leave. Recognizing a fit parent’s right to choose how their child will be cared for during their absence, which includes the encouragement of a child’s continued relationships with stepparents and siblings, the Court supports both parents to exercise their parenting time, and the delegation of that time, in the child’s best interests.
In an effort to avoid such recurring challenges common for military families, it is good practice to incorporate provisions into the parenting plan regarding care for the child during a military parent’s absences for required leave.
Recognizing that parenting time orders must be established to accommodate periods of absence for military parent deployment, but sensitive to crafting such orders in a way that does not unfairly prejudice military parents in child custody matters, the Colorado legislature enacted Title 14, Article 13.7. Uniform Deployed Parents Custody and Visitation Act, which incorporates provisions for interim parenting time orders during periods of deployment. Such interim orders ensure that the temporary parental responsibilities and parenting time order reverts to the orders that were in place at the time the service member was deployed or called to active duty.