You asked whether courts consider a parent's absence caused by a military deployment as a factor in making child custody decisions and if federal or other states' laws address this issue.

SUMMARY

Family courts take a parent's military status, including actual or likely deployments, into account when resolving child custody disputes if one of the parents or a child's legal representative raises the issue. As courts must base their decisions on the child's best interests, a parent's actual or likely long-term deployment may be relevant because that parent must rely on others, such as current spouses, grandparents, or other relatives to take care of the child in his or her absence. Alternatively, if the soldier-parent intends to have the child accompany him or her to a distant location, courts have considered the impact this is likely to have on the child's ability to maintain strong relationships with the other parent and family members (Jay Zetter: Effect of Parent's Military Service Upon Child Custody, 21 ALR 6^th 577 (2007)).

Several states, including Arizona, California, Florida, Kentucky, and Wisconsin have enacted laws limiting the weight family courts can give to deployment-related circumstances. Similar legislation is being considered in the U. S. Senate and New York State Assembly.

We enclose copies of the laws and proposed bills.

ARIZONA

Arizona's law specifies that a custodial parent's military deployment is not a legally sufficient reason for modifying child custody if that parent (1) will be deployed for less than six months and (2) has filed a military care plan that adequately identifies substitute caregivers and their responsibilities. The law also requires that child custody orders made in contemplation of or during the custodial parent's deployment include provisions assigning custody after the deployment ends (Ariz. Rev. Stat. §25-411).

CALIFORNIA

California law specifies that a parent's absence, relocation, or failure to comply with custody and visitation orders is not a legally sufficient reason for modifying a child custody order when caused by the parent's activation to military service and out-of-state deployment (Cal. Fam. Code §3047).

FLORIDA

Florida law prohibits courts from permanently modifying a custody order when the parent's ability to continue as the child's primary caretaker is materially affected by his or her activation, deployment, or temporary military assignment. Temporary modifications are permissible if supported by clear and convincing evidence that this is in the child's best interests. The court must reinstate the previous order when the parent is de-activated or returns from the deployment or temporary assignment.

Temporary custody modifications must include provisions ensuring continuing contact between the child and soldier-parent, if feasible. The statute lists webcam, telephone, and other electronic communication technologies as methods for accomplishing this. It also directs courts to permit liberal visitation during military leaves, stating that it is in the child's best interests to maintain the parent-child bond during a parent's military service (Fla. Stat. Ann. §61. 13002).

KENTUCKY

The Kentucky statute mandates that custody modifications be temporary when based in whole or in part on a parent or de facto custodian's (1) deployment as a member of the armed forces outside the United States or (2) call to federal active duty as a member of a state's National Guard or Reserve component. The previous custody arrangement must be reinstated when the deployment or activation ends unless the soldier-parent agrees to have the modified arrangement continue for a longer time (Ky. Rev. Stat. Ann. §403. 340).

WISCONSIN

The Wisconsin legislature passed a law in 2006 that prohibits courts from considering a parent's active duty or the likelihood of future deployments when (1) determining or modifying child custody arrangements or (2) reinstating periods of physical custody after the parent is discharged from active duty. If temporary custody changes are made during a deployment, the law requires that the previous arrangement be reinstated when the deployment ends (2005 Wisconsin Act 471, codified at Wis. Stat. §§ 767. 24 and 767. 325).

PROPOSED BILLS

A bill pending in the U. S. Senate would prohibit courts from ordering permanent child custody changes while an affected parent is deployed (S 1658). And a bill pending before the New York State Assembly would prohibit courts from considering a parent's deployment as a detrimental factor when awarding child custody, so long as that parent provides the court with a suitable child care plan (A 6027).

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