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January 12, 2015 Blog

Military Spouses and Deployment: The Effect on Child Custody

By: Jonathan Melton

North Carolina has adopted the Uniform Deployed Custody and Visitation Act which, among other things, prohibits the court from using a parent’s past deployment or possible future deployment as the sole basis for deciding child custody. The Act also provides a quicker process for courts to address the custodial issues of a parent who is preparing for deployment. If a custody action is filed prior to deployment, the matter is given an expedited hearing.

The Act also allows parents to address custodial issues arising from deployment by a special, temporary agreement or contract. This agreement must be in writing, signed by both parents, and filed with the court; it will automatically expire upon return of the deployed parent. In the agreement, the parents can allocate caretaking authority to a nonparent, which means another family member of the deployed parent could exercise the custodial or visitation time normally afforded to the deployed parent. The parents can also agree to allow electronic visitation between the child and the deployed parent.

With regards to divorce, a military spouse could delay the proceeding under the Servicemembers Civil Relief Act (SCRA). SCRA applies to any individual who is called to active duty for more than 30 consecutive days. Under SCRA, when a lawsuit is filed against a deployed spouse, and the deployed spouse has never made an appearance before the court, the court may not enter a default judgment against the deployed spouse without first appointing an attorney to represent him or her. A “default judgment” means any ruling or decree that is adverse to the deployed spouse’s interest, including a divorce judgment. If the deployed spouse has made an appearance, he or she could still ask the court to suspend the proceedings for at least 90 days, or reopen the judgment for further action within 60 days upon his or her return from deployment.

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