Can a parent modify an order due to military duty?
A parent’s absence, relocation, or failure to follow a custody or visitation order due to activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state is not enough, by itself, to justify a modification of the order.1 However, if the military assignment requires a parent who has sole or joint physical custody to move a significant distance from his/her home or otherwise has a significant effect on his/her ability to use his/her custody or visitation rights, the order can be modified.2
1 Ann.Cal.Fam.Code § 3047(a)
2 Ann.Cal.Fam.Code § 3047(b)(1)
If the order is modified due to a custodial parent’s military duty, what happens when the parent returns?
If a custody order is modified based on the reasons mentioned in the question above, the modification of the order will be considered a temporary custody order that will be reconsidered upon the person’s return. The judge will assume that the temporary, modified custody order will change back to the original order that was in place before the modification (unless the judge determines that it is not in the best interest of the child).1 In the temporary custody order, the judge should do whatever is appropriate to make sure that the moving parent can keep regular and continuing contact with the child in reasonable ways.2
1 Ann.Cal.Fam.Code § 3047(b)(1)
2 Ann.Cal.Fam.Code § 3047(b)(3)(A)
If the parent with sole/joint custody has moved far away due to military duty, can his/her relatives get visitation?
Yes – if the relative can meet certain conditions. The relocating parent (not the family member) can file legal papers to ask the judge to give visitation rights to a step-parent, grandparent, or other family member. The judge can grant the visitation if the judge does all of the following:
- Believes that there is a pre-existing relationship and bond between the family member and the child, so that visitation is in the child’s best interest;
- Believes that the visitation will help the child’s contact with the absent parent; and
- Balances the interest of the child in having visitation with the family member against the right of the parents to use their parental authority.1
Note: These visitation rights to a family member do not affect the calculation of child support.2
1 Ann.Cal.Fam.Code § 3047(b)(3)(B)
2 Ann.Cal.Fam.Code § 3047(b)(3)(C) and (D)
What happens if a parent cannot attend a hearing due to military duty?
If a person’s deployment, mobilization, or temporary duty will affect his/her ability to be at a regularly scheduled hearing in person, the judge will do either of the following depending on what the parent asks for:
- Move up the hearing to determine custody and visitation issues before s/he has to leave; or
- Allow the parent to present testimony and evidence and participate in court-ordered child custody mediation by telephone, video teleconferencing, or the Internet (for example), if these are reasonably available to the judge and the process is fair to all parties.1
1 Ann.Cal.Fam.Code § 3047(c)