Child Custody and the Military Service Member

 It has been over a decade since the brutal attack on September 11th, 2001, and the declaration of a “war on terror,” which necessitated an increased presence of American forces in the Middle East and around the world.  Though the troops in Iraq have largely been withdrawn, and the long-promised withdrawal from Afghanistan is on the imminent horizon, the need to send our troops off to foreign lands seems as ubiquitous to the American experience as apple pie.

        Sending a loved one off to war is never easy. The need for a parent to serve military duty has created a unique set of problems for military families for decades, and supporting the troops has long been a family affair. However, in recent decades, the increased number of divorced or single parent households has put additional pressure on military parents to find solutions to the dilemma of conflicting duties to their children and their country. SOURCE estimates that there are approximately 140,000 single parents currently serving in one of the five branches of the armed forces. In addition to the single parent military families which already exist, there are countless more pushed to the brink of separation and divorce as a result of lengthy, or repeated deployments.  Dealing with the issue of determining custody and visitation when one parent is serving in the military has become a real issue at the forefront of modern family law. The need for specific legal provisions governing military families involved in custody disputes has prompted many states, including North Carolina, to enact statutes to protect service members’ rights both during and after deployment. 

       Child Custody is a determination that is made based upon the “best interests” of the minor child. N.C. Gen. Stat. §50-13.2(a). However, when one of parent is a military service member, temporary duty or deployment can have a disruptive effect on custody and visitation arrangements and can make participation in a custody lawsuit nearly impossible. Furthermore, most if not all of the factors examined in a typical custody trial, including factors relating to a parent’s ability to maintain stability in housing, schooling, participation in social/extracurricular events of the child, availability to assist with homework, emotional stability and others are affected by his or her need to serve military duty and/or deployment.

       There are already laws which allow military service members to stay or to delay the prosecution of a lawsuit. The Service Members Civil Relief Act, 50 U.S.C. App. 501 et seq., provides for discretionary and mandatory delays in cases where the court makes certain findings, primarily having to do with the service member’s inability to be present for hearings or to assist in the prosecution or defense of the action. However, the conflicting need of a Court to provide stability and to carve out a plan for custody and visitation make the grant of extended stays due to military deployment dangerous to the child and unlikely for the service member.

       North Carolina has addressed the competing need to accommodate the soldier-parent while allowing for a swift and efficient determination in custody cases by allowing the military service member to delegate custody or visitation rights to a relative who is closely connected with the child while that service member is away on extended duty or deployment. N.C. Gen. Stat. 50-13.7A protects the military parent with primary custody by allowing him or her to place children with relatives while he or she is away, and specifically exempts such parent’s temporary absence, in and of itself, from constituting a substantial change in circumstances for the purpose of pursuing modification of an existing custody order. For the military parent with visitation rights, the statute allows for delegation of that parent’s rights, or a portion thereof, to a family member with a close and substantial relationship to the children for the duration of the deployment so long as such delegation is deemed by the Court to be in the best interest of the children. Assignment of custodial rights pursuant to §50-13.7A is distinguishable from “grandparent visitation” or other third party custody actions in that it confers upon the third party relative or step-parent no independent rights to visit with the child, but rather, allows the absent military parent the right to designate an individual with whom his or her children may associate in much the same way the parent would if he or she were stateside. North Carolina’s law can be seen as authorizing a delegation of the military parent’s rights, rather than creating new rights for his or her family members. Delegation requires judicial approval, a best interest determination and a finding that the grandparent, step-parent or other family member of the service member has a close and substantial relationship with the child, so as to safeguard the child’s delegated visitation rights.

       There is much yet to be determined with regard to the ever more complicated and competing needs of military service members to fulfill their duties to their service and to their family. However, with the enactment of statutes such as §50-13.7A, our legislature and the Courts have made a commitment to the protection of the military parent and the promotion of continued and strong bonds between soldiers and the children they fight so hard to protect.

   –Jennifer Bennett joined Hodges & Coxe PC as an associate
attorney in 2010 and currently practices in the areas of general civil
litigation and matrimonial law, focusing on divorce, child custody
disputes, establishment and defense of child and spousal support
obligations, equitable distribution and marital tort claims. You can
reach her at (910) 772-1678 or at jbennett@hcpplaw.com