Child Custody for Military Parents

A soldier's hand holds a child's hand in close-up. My father is a military man. A soldier and a child. Father's love

People join the military for many different reasons: to make the world safer for their loved ones, to support their families, and because they love their country. While many of the motivations for military enlistment center around the desire to make life better for family members, military service can be hard on a family, especially when a military parent is deployed. Military parents may be concerned about whether their service will affect custody; parents considering joining the military may ask “Will I lose custody of my child if I join the military?”

It’s not an unreasonable question. In South Carolina, as in other states, child custody is based on the best interests of the child, and courts consider a number of factors, including the stability of the child’s current environment. Evaluating each parent on the “best interest” factors without taking into account the value of the military parent’s service would create a huge burden for military parents who want to maintain custody of their children.

How Does Custody Work in the Military?

The federal government has long offered legal protections for military personnel. One example is the Servicemembers’ Civil Relief Act (SCRA), which can postpone court proceedings when a servicemember on active duty is not available to appear in court. However, there are fewer federal protections for military personnel available in family court than in other civil courts, primarily because family law has generally been the exclusive province of the states.

As you can imagine, that led to serious difficulties for servicemembers with child custody and visitation cases. When a parent with primary custody is deployed and the child goes to stay with the other parent for an extended period, is that a “change of circumstances” that warrants a permanent change of custody? If a parent who is deployed is home for two weeks’ interim leave, do they only get visitation with the child for one weekend of that time per the existing schedule? And if the non-military parent is preventing the military parent from having contact with the child, how is the military parent to get a court hearing enforcing visitation when they can’t get on the docket during their brief leave? Even if the law is on the military parent’s side in a dispute, enforcing rights in courts can be very costly.

To address scenarios like these, South Carolina enacted a state law to protect military parents in custody and related cases: the Military Parent Equal Protection Act (MPEPA).

The South Carolina Military Parent Equal Protection Act

South Carolina enacted the Military Parent Equal Protection Act in 2009. MPEPA addresses issues that arise for both active duty military and reservists. Specifically, the act is broadly written to prevent military-related duties from negatively affecting the relationship between a parent and child.

Some of the custody-related provisions of MPEPA target the problem of a military parent with custody losing custody permanently due to a deployment (which is not limited to overseas or combat deployment). Ordinarily a non-military parent who assumed temporary custody of the child during the other parent’s deployment would gain an unfair advantage if they decided to pursue permanent custody. If the child is safe, happy, and doing well in the temporary arrangement, courts might hesitate to move the child. As a practical matter, that would mean the military parent could lose custody as a result of their deployment.

Under MPEPA, the military deployment cannot be the sole determining factor in making a permanent change of custody. In addition, MPEPA provides that the temporary custody modification automatically terminates when the military parent is released from service, at which time the original custody terms are reinstated. As a further protective measure, MPEPA states that a court shall not enter a final order modifying custody or visitation until ninety days after the military parent is released from service.

As with any custody matter, the best interests of the child remain paramount. But the combined effect of the MPEPA provisions regarding custody eliminates the unfair advantage the non-military parent could have in a custody action.

MPEPA also addresses visitation issues for deployed military parents. The law provides that the custodial parent must accommodate the deployed parent’s leave period for visitation, which is usually only two weeks out of a deployment that lasts a year. Courts frown upon a nonmilitary parent’s obstruction of a child’s ability to spend time with their military parent during that leave. MPEPA also imposes a good faith duty on parents to cooperate, encouraging them to negotiate rather than go to court. A parent who acts in bad faith rather than negotiate fairly could be required to pay the other parent’s legal fees in enforcing their rights.

Since South Carolina enacted MPEPA, several other states have passed laws protecting the custody rights of military parents. These issues can be complicated by the interplay between federal and state laws, and it’s important to work with an experienced South Carolina military custody attorney. If you have further questions about MPEPA or military parent child custody issues, contact Brinkley Law Firm, LLC to schedule a consultation.