Military Deployment and San Diego Custody Cases

San Diego is known for having a vast military community. Among the many military bases in San Diego County are the Marine Corps Air Station Miramar, the Marine Corps Base Camp Pendleton, the Naval Base Coronado, the Naval Base San Diego, and the Naval Base Point Loma. In fact, the Naval Base San Diego is the largest base of the United States Navy on the west coast. Having a parent in the military can bring out a new set of child custody and visitation complications. It is important to consider possible deployments when creating any parenting plan.

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California Family Code section 3047 directly addresses a parent’s military obligations, “a party’s absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party’s activation to military duty…or military deployment out of state.” Under this statute, one parent may not use the other’s military duties against them in a child custody proceeding. If the sole or joint physical custodian is required to move a substantial distance or is otherwise unable to exercise his or her custodial rights, the court may order a temporary modification in custody. Once the military parent is able to resume his or her custodial duties, the temporary order is subject to review. However, there shall be a presumption that the previous order will resume in place of the temporary modification. This presumption can be overcome if the court finds it is not the best interest of the child.

The best interest of the child is the controlling theme throughout San Diego family law. The court considers a number of factors and makes determinations of custody and visitation. Among the factors the court will consider are:

(1) The health safety and welfare of the child;
(2) Any history of domestic violence;
(3) The nature and amount of contact the child has with both parties; and (4) The use of drugs or alcohol by either party.

These factors will be carefully weighed by the judge against the presumption that the custody order shall revert to the order in place prior to the modification. In a recent San Diego custody case, these two considerations were not aligned making a tough decision for the family court judge. In this particular case, the mother was deployed out of the country for the period of two years. At the time of her deployment, her son was five years old and she was his primary caretaker. The child resided with the mother primarily and had weekend visitations with the father. Upon learning of the deployment, the parents agreed to a temporary parenting plan. Father would become the primary caretaker and the child would reside with him with video chat visitations to mother. It is important to note that the parties agreed, upon mother’s return, the child would resume living with her and the temporary modification would no longer be in place.

Upon the mother’s return from deployment, the father had relocated to and refused to permit the child to reside with her. He argued that the child was now settled living with the father, had made friends in the neighborhood and with his half-siblings, and was performing well in school and his extracurricular activities. The judge was required to weigh the nature and amount of contact the child had with father on a daily basis and with mother infrequently against the military presumption. The mother cited California Family Code section 3047 in her argument but the judge was not persuaded. Upon serious consideration, the judge granted mother reasonable visitation but ordered that the child continue to reside with father. Mother’s attorney argued that the judge in this case completely ignored the code section put in place to preserve the parental rights of military parents and ruled contrary to the legislative intent behind the provision.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.