Soldiers’ parental rights in custody cases

As a family law lawyer near Fort Campbell, (text me at 931-217-7648 with questions) many of my clients are soldiers in the U.S. Army. As Soldiers, they frequently move from post to post, deploy and are assigned overseas, not to exclude temporary duty assignments such as schools and training in the field.  These high tempo operational needs of the Army conflict directly with the soldiers ability to parent. While gone from home, many times the Soldiers is dependant on wife, step-spouse or relatives to take care of the minor child while away.  The problem for the parent soldier is that the central focus of a custody case relates to a parents ability to have a day-to-day presence in a child’s life.  Whether it be a divorce or post divorce custody case, the deployment schedule and training schedule for the soldier can be used against the soldier as a parent. This causes a huge problem in defending soldiers rights as parents in court proceedings.

In Tennessee, like most states, the primary test to determine whether or not a parent will be  the primary residential parent is the “best interest of the child test.” This is sometimes call the comparative fitness of the parents test. The best interest of the child test has a set of factors which the judge uses to evaluate the relative abilities of each parent to be the primary residential parent.

Tennessee Code Annotated 36-6-106 (a) lays out the factors for child custody determinations. There are fifteen factors which a judge uses in order to determine who is named as the primary residential parent. Each factor relates to the effect on the child. Every factor is related to the effect on the child.

Obviously, the central concern is for the child.  And, this may seem like the best answer for determining who should be the primary residential parent in a custody case. The problem is that there are some central assumptions of the test which go against the Soldier and military life. Factor 5 deals with whether or not a parent has primarily been in the role of the primary residential parent.  Many soldier can’t fulfill this role except when they are home. Factor 10 is a determination of the continuity in child’s life.  This is a factor that frequently goes against a military life-style. Factor 14 deals with a parent’s employment schedule.  Rarely can a Soldier win this one. The loss of these three factors in a very close custody case frequently means an automatic loss for the military soldier.

The custody case involving a Soldier requires a very concentrated “re-education” of the Court.  The case must develop around teaching the Court the value of a military lifestyle.  Teaching the Court about the benefits of the services provided by the military is essential. The benefits associated with having a soldier in the military, the availability of medical care, stability of finances, ability to use the EFMP (exceptional family member ) program, even the stability of a life-style with a strict code of ethics related to drug usage and alcohol. The central negative assumptions have to be overcome or the Soldier has no chance of winning.

Most States have an underlying assumption built into their custody determinations that assume stability equals not moving.  For a Soldier, this assumption must be attacked.  There is a value to being worldly and educated.  It is no longer stigma to be an “army-brat.”  A child that is given the opportunity to live in Europe or Asia for several years can be enhanced by the experience.  These types of unique ways of looking at the military lifestyle have to be presented to the court in a positive way or the Soldier will lost meaningful visitation and an opportunity to be name the primary residential parent for the children.

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