Military Divorce and Parenting Issues

Posted By Matthew Clawson || 22-Jan-2015

Parenting children in military families is difficult under even the best of circumstances. Parenting children through military divorce is even more challenging. Even if overseas combat missions are supposedly winding down, all serving in the military can expect to be transferred every two years, at best, and deployed to serve in short (or long term) combat/"advisory" missions at worst.

Military spouses with children must consider the timing of their marriage dissolution proceedings. If the civilian spouse of the military member does not intend to stay in Colorado after the dissolution is final, then it makes little sense to begin the dissolution proceedings in a Colorado court—with a judge who would be reluctant to permit the civilian spouse to remove the children from Colorado on either a temporary, or permanent, basis.

Even if the civilian spouse remains in Colorado after the dissolution is final, the service member will almost certainly be moved to a new duty station within a year or two of the dissolution. Unless the civilian parent wants to move with the service member, the court will have to review the relocation request by the service member. Almost certainly, the children will be separated from one of their parents.

In light of frequent deployment of service members, courts in Colorado have had to adjust to the realities of military life, military marriage and military divorce when it comes to considering the best interests of the children. In one case the court was presented with an Air Force reservist who had equal parenting time under the court's order, but he was being deployed overseas. He wanted his new wife, the children's stepmother, to spend his parenting time with his children while he was deployed. Even though his parenting orders permitted the children's mother to have the right of "first refusal" to the children's time if he did not exercise his parenting time, the court looked at the big picture. The court assumed that a fit parent will act in the best interests of his or her children and, as such, could delegate his or her parenting time to another person—even where the custodial parent had a "right of first refusal" to the children's time. In this case, the children were allowed to spend their time set aside for their father with their step-mother while he was deployed. It remains unclear how a court would rule in a similar situation if the deploying parent delegates parenting in his absence to a friend or neighbor rather than to a spouse or family member. Also unclear are how disputes over the house rules of the "local" parent are to be enforced when in conflict with the parent with whom the child usually resides.

During the height of the Iraq war, the Colorado legislature wrote some parenting protections for Colorado National Guard or Reservists who are called up for a federal deployment. In a law enacted in 2008, it is now clear that the parenting rights of deployed Colorado parents in the Guard or Reserve will not be lost or impaired if they consent to the other parent raising the children during their active duty service and deployment.

The laws governing the parenting of children of military divorces are complex and far-reaching—in both federal and state law, as well as under military regulations. Before guessing how your proposed, informal, solution may affect your custody or parenting orders for your children, consider consulting with experienced Colorado family law attorneys such as those at Clawson & Clawson LLP. Deployment is stressful enough. At least make sure that your parenting rights regarding your children and their parenting issues will be preserve and protected during your deployment.

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