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Protecting Our Military Service Members From Child Custody Litigation

It is no secret that San Diego County is a military town. Often times, military families face very challenging and unique circumstances, especially when service members are subject to deployment. One of the most common domestic issues amongst military families is child custody issues. In California, service members are protected under Family Code Section 3047. In summary, a parent's deployment is not, by itself, sufficient to modify visitation orders. In fact, Family Code Section 3047 (e) provides: It is the intent of the Legislature that this section provide a fair, efficient, and expeditious process to resolve child custody and visitation issues when a party receives temporary duty, deployment, or mobilization orders from the military.

 

Family Code Section 3047 states the following in relevant part:

(a) A party's absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.

Moreover, Family Code Section 3047(d) defines the terms as follows: (d) For purposes of this section, the following terms have the following meanings:

(1) Deployment means the temporary transfer of a member of the Armed Forces in active-duty status in support of combat or some other military operation.

(2) Mobilization means the transfer of a member of the National Guard or Military Reserve to extended active-duty status, but does not include National Guard or Military Reserve annual training.

(3) Temporary duty means the transfer of a service member from one military base to a different location, usually another base, for a limited period of time to accomplish training or to assist in the performance of a noncombat mission.

Further, the Judiciary provides that any modification to visitation is only a temporary order. The modification can allow a stepparent (or some other family member that the child has an existing relationship with) to care for the children during the deployed parent's custodial time. The modification may be reviewed and reconsidered under the best interest of the children standard.

Family Code Section 3047 states the following in relevant part:

(b) (1) If a party with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military that require the party to move a substantial distance from his or her residence or otherwise has a material effect on the ability of the party to exercise custody or visitation rights, a modification of the existing custody order shall be deemed a temporary custody order, which shall be subject to review and reconsideration upon the return of the party from military deployment, mobilization, or temporary duty. If the temporary order is reviewed upon return of the party from military deployment, mobilization, or temporary duty, there shall be a presumption that the custody order shall revert to the order that was in place before the modification, unless the court determines that it is not in the best interest of the child.

(2) (A) If the court makes a temporary custody order, it shall consider any appropriate orders to ensure that the relocating party can maintain frequent and continuing contact with the child by means that are reasonably available.

(B) Upon a motion by the relocating party, the court may grant reasonable visitation rights to a stepparent, grandparent, or other family member if the court does all of the following:

(i) Finds that there is a preexisting relationship between the family member and the child that has engendered a bond such that visitation is in the best interest of the child.

(ii) Finds that the visitation will facilitate the child's contact with the relocating party.

(iii) Balances the interest of the child in having visitation with the family member against the right of the parents to exercise parental authority.

(C) Nothing in this paragraph shall increase the authority of the persons described in subparagraph (B) to seek visitation orders independently.

(D) The granting of visitation rights to a nonparent pursuant to subparagraph (B) shall not impact the calculation of child support.

Moreover, the Judiciary is lenient for service members to participate electronically and or expedite your child custody hearing. Family Code Section 3047 states the following in relevant part:

(c) If a party's deployment, mobilization, or temporary duty will have a material effect on his or her ability, or anticipated ability, to appear in person at a regularly scheduled hearing, the court shall do either of the following:

(1) Upon motion of the party, hold an expedited hearing to determine custody and visitation issues prior to the departure of the party.

(2) Upon motion of the party, allow the party to present testimony and evidence and participate in court-ordered child custody mediation by electronic means, including, but not limited to, telephone, video teleconferencing, or the Internet, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

Should you or your co-parent need a WARRIOR to defend your custodial time, then please consult with My Legal Warrior today!

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