If a parent is in military service and deployed out of state, what happens to that parent's custody or visitation?
Unless the parents are living together and have actual knowledge of one parent’s deployment, the deploying parent must notify the other parent within 7 days of receiving the notice of deployment (or as soon as possible if the circumstances of military service prevent him/her from giving notice within 7 days). Each parent must then provide the other with a proposed parenting plan to account for the deployed parent’s custodial responsibilities and/or visitation during his/her deployment.1
Note: If either parent has a court order requiring that his/her address remain confidential, the parents can submit the notice of deployment and the proposed parenting plan directly to the court that issued the order instead of sending it to the other parent.2
1 TN ST § 36-7-105(a),(b),(d)
2 TN ST § 36-7-105(c)
If a parent with custody rights has moved away due to military deployment, can the custody order be modified?
The parents have the option of entering into a temporary custody agreement to assign (give to another person) custodial responsibility while one parent is deployed. The agreement must be in writing and signed by both parents and by any non-parent who is getting custodial responsibility.1 The agreement should include:
- The length and location of the deployment;
- How the caretaking authority will be divided among the deploying parent, the other parent, and any non-parent with caretaking responsibility;
- Specify what decision-making authority, if any, will also be given to each parent and non-parent;
- Provide a process for final decision-making when there is a disagreement regarding caretaking responsibilities between the non-deployed parent and a non-parent;
- Regarding communication between the deployed parent and the child, specify the method (type) of communication there will be, the length of time, and how often it will take place; also, specify any role to be played by the other parent in helping to carry out the contact, and who will pay for any costs of contact;
- Identify what contact is to occur between the deploying parent and child during the time the deploying parent is on leave or is otherwise available;
- Acknowledge that any change in either parent’s child support obligation cannot be changed by this agreement and that it must be handled in the appropriate court; and
- Provide that the agreement will terminate and go back to the terms of the original custody order once the deployed parent returns.2
If parents are unable to come to a temporary custody agreement, either parent can file a request with the court to issue a temporary order assigning (giving to someone else) the deployed parent’s custodial rights and responsibilities. If a custody case is already started, either parent can file a motion in that case. If a custody case is not already started, either parent can file an initial custody complaint to request that the court issue a custody order to address custody during a parent’s deployment.3
1 TN ST § 36-7-201(a),(b)
2 TN ST § 36-7-201(c)
3 TN ST § 36-7-302
If a temporary order is issued during a parent’s military duty, what happens when the parent returns from deployment?
An order granting custody or custodial responsibility during a parent’s deployment is temporary (unless it says otherwise). The court cannot issue a permanent custodial responsibility order without the consent of the deploying parent.1 Once the deployed parent returns, the temporary order ends (unless a court order has already terminated the custodial rights and responsibilities before s/he returns).2 A non-parent who is granted any caretaking or decision-making responsibilities has the right to continue to seek that those rights be enforced until the order is terminated by a court or terminated upon the deployed parent’s return.3
1 TN ST § 36-7-302(a)
2 TN ST § 36-7-307(a)
3 TN ST §§ 36-7-307(b); 36-7-401
How will a court consider a parent’s absence due to military duty when deciding which parent gets custody?
When making a decision about which parent gets custodial responsibility, the judge is allowed to consider any significant impact of a parent’s past or possible future deployments on the best interest of the child. However, the court may not consider past or future deployment as the sole factor for determining custodial responsibility.1
1 TN ST § 36-7-107