Can Deployed Military Personnel Obtain Full Child Custody During Divorce?

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Latest divorce statistics for military marriages prove that the number of military divorces is at its lowest in a decade, but 3.1% of military marriages did still end in 2014. As an active serving member of the military, you know that being gone for long periods of time, particularly if you are deployed overseas, can take a toll on your marriage and your family. If you are at a crossroad in your life where you are considering divorce, you need to carefully think about the impact this will have on your children. In particular, you may be wondering if you can file for divorce and retain primary custody of your children in light of your deployment issues. Discussing this subject very carefully with a divorce lawyer who understands the military way of life will give you the specific facts you need to know, but here are a few points to consider.

Can You Obtain Full Custody?

There is nothing in the current laws that states you cannot obtain full custody of your children despite the possibility of being deployed overseas. However, the judge is going to be solely concerned about what is the best interests of the child. The courts are going to want to know who is going to be caring for the children while you are away, and you are going to need a strong argument why this carer is in a better position to care for your children than your ex-spouse is.

If you do not have a strong enough argument why they cannot be with your ex-spouse while you are deployed, then it is possible the courts will decree that, when you are away, temporary custody goes to your ex-spouse until you return. This then raises a new worry for you about reverting to the original custody arrangements when you return home.

Military Custody Protection

There are three major legal points in your favor while you are deployed overseas with regards to protecting any child custody that is awarded to you before you go away. There is legislation in place that states: 

  1. While you are deployed, no court can modify a custody order, or create a new custody order, unless there is overwhelming evidence a change is needed to protect the interests of the child.
  2. If your ex-spouse does receive temporary custody while you are away, then, when you return, the custody must revert to what it was before you left.
  3. Your deployment cannot be negatively used against you while the best interest of your child is being considered.

Effectively, this means that if you are able to gain full custody, you will be protected if you are deployed out of state or internationally.

Preparing for a Lawyer

Now that you know there is no reason why you can't get full child custody during divorce proceedings, you need to make a consultation with a lawyer who will give you advice that is specific to your circumstances. Because this is not a straightforward divorce proceeding due to the complication of your active duty, you need a military divorce lawyer who is skilled in making arguments for people like you.

Before you attend your first meeting with the lawyer, you need to be very sure you can provide a safe, stable home for your children if you have to leave to go overseas. It is up to you to be able to prove that being military personnel does not mean the fundamental needs of your children will be affected. Having these details carefully planned out before you meet with your divorce lawyer will give them the opportunity to advise you about your chances of gaining full child custody and how to go about starting the process.