Frequent deployments and the fact that permanent transfers of servicemembers between bases can occur every two, three, or four years can cause havoc on military families with the potential for breaking the bonds of servicemembers with their children. Mobilizations, temporary duty, deployments, and remote assignments can take their toll on the family court judges who handle custody cases as well. Often, it appears that there are no clear rules to guide family court judges when a family separation arises, there is a dispute over the care of children, and there is a uniformed parent.
But there are rules.
Periods of deployment, standing alone, cannot be used against the uniformed parent.
Under MCL 722.27(1)(c), courts are prohibited from using the servicemember’s military service as a factor in the best interests of the child factors if one parent is seeking a modification of the child custody order during the period of active duty. See MCL 722.22(a).
Additionally, MCL 722.27(3) prohibits a permanent change of custody during a servicemember’s deployment, but may permit a temporary custody change if there is “clear and convincing evidence that it is in the best interest of the child.” This balances protecting the servicemember from having his or her military service unfairly used against him or her while protecting the best interests of the child by allowing a temporary order to be issued providing for caretaking authority in the servicemember’s absence. Although a court may temporarily modify a custody order while a servicemember is deployed, practitioners may wish to limit the length of temporary custody modifications to match the period of the expected military service overseas.
Once the active duty parent informs the court of the deployment end date, the court must reinstate the custody order in effect immediately preceding that deployment period. MCL 722.27(4). If a motion for change of custody is filed after a parent returns from deployment, the court may not consider the parent’s absence due to active duty in a best interests of the child determination. MCL 722.27(4), added by2015 PA 52; see also Ekdahl v Ekdahl, No 302029, 2011 Mich App LEXIS 1635 (2011) (unpublished). In Ekdahl , a dispute between a Michigan mother and an active duty father who was stationed in Virginia, the family court held thatmilitary absence could not be used against him in determining the best interests of the minor child, even though he had been deployed for a year in Korea.