Military Relocation or Deployment and Parenting

Are you involved in a divorce or child custody case involving military relocation or deployment and parenting? (The Colorado statutory tiles for these are dissolution of marriage and allocation of parental responsibilities). An experienced Colorado Springs divorce and child custody lawyer can guide you through the legal process and assist you in exploring your options. You have one bite at the apple in the court system so make it count.

Military members are more mobile than their civilian counterparts. Many are sent to new duty stations every two to four years, may travel for temporary duty, and may be sent overseas on short tours, regular length tours, or combat or hazardous area deployments. Allocation of parental responsibilities issues may arise during these transitions that are not addressed in a current parenting plan. Therefore, if the parties can not formally agree on a temporary plan they may have to initiate a court proceeding to resolve the issue.

Sometimes when a military dissolution action is filed, the spouse knows that they wish to relocate somewhere else; perhaps to be closer to the support of extended family. In an initial custody determination, allocation of parental responsibilities, or paternity action, Spahmer v. Gullette and C.R.S. § 14-10-124 guide the Court’s evaluation. C.R.S. § 14-10-124 requires application of the “best interests of the child” standard and directs the Court to make an initial determination and allocation of parenting time after evaluating several statutory factors. These factors are addressed in detail in the chapter on allocation of parental responsibilities.

Because of the constitutional right to travel, a court cannot order a parent to live in a specific location. The Court must accept the location where each party intends to live and allocate parental responsibilities accordingly, considering the best interests of the children in each location. The Court will then determine where the child should live and with which parent. In most cases where parents reside in different states, one parent will be the primary parent and the other will exercise lesser parenting time, usually during the summers and school holidays. This minimizes the amount of travel that the children are required to engage in, provides more stability, and is necessary with regards to those children with standard school schedules. Thus when parents intend to reside in different states, there may be a contest between the parents as to who will exercise primary parenting time.

Both parents have the opportunity to provide detailed explanations of what the child’s life will be like while living with them, and explain why that is in the child’s best interests for that parent to have primary parent status. Because APR determinations are so fact-specific, there is less predictability in the outcome of court decisions when parents intend to reside in different states. One important factor in military cases is that a military parent relocating on military orders generally does not have a choice regarding relocation, as contrasted to a civilian parent who may choose to remain in Colorado if his or her request to relocate with the children is denied.

There are a few factors that the Court has to evaluate that have different implications for the military population. One is the presence of extended family members where a parent will live. This factor impacts military personnel differently, as it is less common that they have extended family in the location of their duty station. However, the departure or filing for dissolution of a spouse changing military assignment locations may result in the relocation of the non-military spouse to be closer to family in the absence.

Another factor that differs for military members is the “child’s adjustment to his or her home, school, and community.” Because of frequent relocations, military children change communities more often than do civilian children. Therefore, they tend to have less geographic stability. Though upon relocation to other military bases, there is a strong and established family support structure through the military for which there is no equivalent in the civilian sector. This factor is often utilized as a persuasive factor for military parents in primary parent contests. The military support structure may have to be explained to the Court however, as it is not common knowledge for those who have not served in the military. Although a parental deployment cannot be the sole reason for a custody change to the other parent, the impact of parental relocation can be a factor as related to on the best interests of the child.

Military members may relocate temporarily or long-term for reassignments, deployments or training exercises. Temporary absences can occur for a few weeks or several months. A customary deployment to a combat zone is about one year, but can last up to a year and a half. When both parents are in the military, the military requires the parents to have a family care plan specifying who will care for the children if both are deployed. Sometimes the military family care plan alone will be sufficient, however sometimes it will be necessary to engage in a court proceeding to determine with whom the children will reside during parental military absence. A servicemember may even be permitted to delegate parenting time to a step-parent instead of the biological parent during deployment depending on the child’s adjustment to the home and community.

For example, In a post-decree case, Mother appealed an order permitting Step-Mother to exercise Father’s parenting time during his military deployment. The trial court had considered the children’s close relationship with Step-Mother and the stability that remaining in place offered. Mother argued on appeal that the trial court had not given her the appropriate presumption for parenting time over Step-Mother as a biological parent.

The trial court considered the case as a dispute between two fit parents, rather than a dispute between a nonparent and a parent. Father had argued for consistency with regards to the children’s residence and schedules based on their extensive and continuing involvement with Step-Mother. The trial court concluded that it was in the best interests of the children that Step-Mother provide care in that case in the interest in continuing stability for the children. Mother contended that granting Father’s requested schedule constituted granting parenting time to Step-Mother, and was thus not consistent with Colorado law.

The appellate court upheld the trial court decision and concluded that the trial court did afford Mother a due presumption as to parenting during deployment, however also reasonably considered the presumption that a fit parent can delegate his or her parenting time. Therefore, the arrangement related to Father delegating his parenting time during his absence as opposed to Step-Mother being granted parenting time.

Turning Change Into Opportunity in Colorado Springs, Colorado Divorce and Child Custody

A highly knowledgeable and experienced Colorado Springs divorce and child custody lawyer can guide you through Colorado Springs divorce and child custody matters by negotiating, mediating and litigating on your behalf. You can focus on moving to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find at https://store.lexisnexis.com/products/colorado-family-law-with-forms-skuSKU02903. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation. We also offer paid advice sessions for a more in-depth analysis of your case.