It is not uncommon for a civilian parent to want to relocate with their child or want custody due to separation from a parent who is a service member. How does military status affect the parent who is a service member?
Service Member Relief Act
In 2003, Congress passed the Servicemembers Civil Relief Act (SCRA). The purpose of the act was to protect the legal rights of military servicemembers who were or were going to be deployed on active duty. The act prevented the ability for a civilian to sue or have judgment imposed against a person just because they were on active duty, and not available to come to court. The act eliminated instances where servicemembers would be sued and not receive any notice or attempt of service.
In North Carolina, attached to legal proceeding documents is the Servicemember Relief Act Affidavit. This document is used to determine a person’s military status. If it is determined they are a servicemember, judgment cannot be entered against them until they have proper notice and legal representation. The SCRA applies to mortgages, lease agreements, financial judgements, and civil judgments--including family law judgments.
Servicemembers and Custody in North Carolina
North Carolina is a booming military state, with it being home to eight active military bases. The SCRA is a federal act, and North Carolina has adopted it, along with its own provisions as well. The North Carolina version includes that in a child custody proceeding, the past or future deployment of the parent that is a service member cannot be the sole basis for determining custody. This means that a court cannot give custody to a civilian parent simply because the other parent is a servicemember and has been deployed or has the potential to be deployed. (You can find the North Carolina version of the law at ncleg.gov, section f.)
The key to this statute, is that the consideration can be a factor in determining custody, it just cannot be the only factor in determining custody. The court must consider other factors along with military status to avoid violating the statue. For example, in a recent North Carolina case, the Court of Appeals ruled that the trial court made the right decision when they considered the servicemember parent’s military status in addition to other factors, like the fact that the father had family that lived closer to him than the mother did. When the court considered both these factors together, they awarded custody to the civilian father. They ruled this was the right decision because the military status of the mom was not the only thing the court took into account. The main factor to consider in child custody cases will always be the best interest of the child, and other factors fall behind that.
Ultimately, military status should not be the only factor that determines child custody for a parent that is a service member, but this does not mean that it cannot be considered at all.
If you have questions about child custody in North Carolina, schedule a consultation with one of our family law attorneys at Smith Dominguez. We will be happy to help!