Military custody can be a complicated issue. Consider that the most challenging part of most divorces and separations is working out custody and parenting time. In the case of a military or reservist parent, though, the best laid plans of an otherwise effective lawyer can be totally upended if the custody and parenting time-plan doesn’t take deployment or remote duty into consideration. This is doubly true when the Parent of Primary Residence is the one who could get deployed!
New Jersey law assumes that (at least in most cases) when one parent becomes unavailable to care for the children for some reason, the other parent should get custody. This is referred to as the “parental presumption.” But this is not always sensible when the reason the primary parent is ‘unavailable’ is because they are on a short deployment, and moving the child between homes will disrupt their school and home lives significantly.
In 2009, the Appellate Division of the New Jersey Courts addressed whether a military deployment in and of itself was a change of circumstances that could trigger a change of custody in the case of Faucett v. Vasquez, 411 N.J. Super. 108 (App. Div. 2009). In Faucett, the father had primary physical custody of the child during the school year. Following the father receiving orders for a one-year deployment overseas, the mother filed for custody of the child. The father wished the child, who was partway through a school year, to remain in the care of his long-time stepmother instead.
The Appellate Division stated that “the presumptively temporary nature of the deploying parent’s absence from the home creates practical problems not present whenever a court tries to resolve a more typical custody dispute.” The Appellate Division ruled that the parental presumption did not apply when a change of custody was sought solely based on a military deployment, at least for deployments lasting less than one year.
All this could have been avoided if the issue of what would happen to the child during the father’s deployment had been addressed earlier! It is completely foreseeable that a military or reservist parent may deploy at any time and that a deployment can last for as little as several days to as long as a year or more. As such, we always seek to address and plan for what will happen to the children during the military parent’s deployment in our parenting time agreements and before the court when necessary. Military custody doesn’t need to be complicated; let a lawyer help.
For help with your specific situation, call 856-227-7888 to get free consultation with Alicia Hutchinson, Esq.