When one parent serves in the United States military, child custody cases become more complex — especially when that parent is deployed, stationed overseas, or subject to sudden and unpredictable relocations.
California, home to major military installations, has robust laws that, combined with federal acts, provide critical protections. The overarching goal is to balance the child’s best interests with the need to protect the parental rights of those actively serving.
This blog explains how custody, support, and visitation work when one parent is in the military or living abroad, and what every service member and co-parent needs to know to avoid legal pitfalls.
The Federal Shield: Servicemembers Civil Relief Act (SCRA)
Military status alone cannot be used to deny custody, reduce visitation, or diminish parental rights.
However, the military life does affect parenting logistics — and courts must still prioritize the child’s safety, stability, and continuous access to both parents.
The most fundamental protection for military parents is the federal Servicemembers Civil Relief Act (SCRA). This act is designed to suspend or postpone civil obligations and legal proceedings that might adversely affect servicemembers while they are on active duty.
1. Stay of Proceedings
If a servicemember is named in a civil suit (including a family law matter like divorce or custody) and their military duties materially affect their ability to appear, the SCRA allows them to request a mandatory 90-day stay (or pause) of the proceedings.
- How it Works: The servicemember must request the stay in writing, provide a letter from their commanding officer confirming that duty prevents their appearance, and state a date when they can appear.
- Protection Against Default: Crucially, the SCRA also protects against a default judgment being entered against a servicemember who is unable to appear in court due to active duty.
2. Child Custody Protection
The SCRA explicitly addresses child custody. It states that a court cannot consider a servicemember’s absence due to deployment or the possibility of future deployment as the sole basis for a permanent modification of a child custody order. This prevents a judge from permanently altering custody just because a parent wears a uniform.
California’s Specific Safeguards: Family Code $\S$ 3047
California has implemented the spirit of the SCRA into its own laws, providing specific, clear protections for deploying parents under Family Code $S$ 3047. This section governs how the court handles temporary modifications due to military service.
- 1. Deployment Cannot be the Sole Reason for Modification
California law explicitly states that a parent’s absence, relocation, or failure to comply with visitation orders shall not, by itself, be sufficient to justify a permanent modification of custody if the reason is activation to military duty or deployment.
- The Presumption of Reversion
If a court makes a temporary change to the custody or visitation schedule to accommodate deployment, that change is deemed a temporary order made without prejudice.
- Upon the Servicemember’s Return: There is a legal presumption that the custody order will revert to the original order that was in place before the deployment, unless the non-deploying parent can make a prima facie (on the face of it) showing that reverting to the old order is not in the child’s best interests. This places the burden of proof on the non-deploying parent to keep the new, temporary arrangement.
- Expedited Hearings and Remote Participation
Recognizing the tight timelines of military orders, California courts are encouraged to:
- Hold an expedited hearing to resolve custody issues before the parent deploys.
- Allow remote participation (via telephone, video, or the internet) for the deploying parent to testify and participate in mediation, where reasonably available and fair to all parties.
Jurisdiction: Maintaining California as Home
Military families often move, creating complex questions about which state has the authority (jurisdiction) to decide custody. California adheres to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is crucial for military families.
- Home State Rule: Generally, the child’s “home state” (where the child has lived for at least six consecutive months) maintains exclusive, continuing jurisdiction.
- Deployment as Temporary Absence: When a child leaves California because a parent is deployed, the absence is considered “temporary” for the purposes of the UCCJEA. This means the California court that issued the original custody order typically retains its exclusive and continuing jurisdiction, even if the child lives overseas or in another state for the duration of the deployment. This prevents the non-deploying parent from attempting to establish a new “home state” jurisdiction elsewhere to change the court venue.
Example:
A child lives in San Diego for 3 years. Then the custodial parent takes the child to Germany for six months while the other parent is deployed.
→ California remains the home state.
Overseas Assignments Count as Temporary Absence
Even if the child lives abroad with a military parent, California retains jurisdiction as long as the child returns once orders expire.
This prevents parents from accidentally “losing” jurisdiction because of required military moves.
Overseas Visitation: What Happens If One Parent Lives Abroad?
If a military parent lives overseas — whether due to deployment, PCS orders, or voluntary assignment — visitation becomes more complicated.
Courts Consider:
- Travel time and cost
- Safety and stability in the destination country
- Visa/passport issues
- School schedules
- Age of the child
- Distance and logistical feasibility
Common Solutions:
- Long blocks of visitation during summer or school breaks
- Virtual visitation during the school year
- California courts are required to make appropriate orders to ensure the deployed parent can maintain frequent and continuing contact with the child. This often includes:
- Electronic Communication: Mandatory daily or weekly video calls (e.g., FaceTime, Zoom), phone calls, and email/text exchange.
- Mid-Tour Leave: Providing liberal in-person contact time for the servicemember during any mid-tour leave.
- Split travel costs based on incomes
- Exchanges in neutral locations
- Relative Stand-In Visitation
- Upon the request of the deploying parent, the court may grant reasonable visitation rights to a stepparent, grandparent, or other family member who has a preexisting, meaningful bond with the child.
- Purpose: This temporary measure is intended to help the child maintain stability and facilitate contact with the deployed parent by keeping them connected to the military parent’s family unit.
Courts Prioritize the Child’s Safety
If the overseas location is unstable or dangerous, in-person visitation may be limited temporarily in favor of virtual contact.
Preventing Parental Kidnapping or International Abduction
When one parent lives overseas, courts may impose additional safeguards:
- Requiring written travel itineraries
- Mandating notice before international travel
- Placing the child on the State Department’s Passport Alert Program
- Restricting travel to Hague Convention countries
- Ordering supervised exchanges
- Holding passports in escrow
If the military parent is stationed in a country not part of the Hague Convention, the court may limit or structure visitation differently.
Child Support Adjustments and Allowances
Military income has unique components that affect child support calculations, and the SCRA provides relief in some financial areas.
- Income Calculation: Allowances Count
California courts include more than just base pay when calculating income for support. Non-taxable military allowances—such as the Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS)—are considered income available for support because they reduce the servicemember’s living expenses. Failure to disclose these allowances can result in sanctions.
- Support Modification Upon Deployment
If deployment results in a change in the servicemember’s income (which can happen for Reservists or Guard members who earn more in civilian life), the servicemember can request an expedited review of the support order before they deploy.
- Interest Rate Reduction
The SCRA provides a crucial financial protection: a servicemember can request that the interest rate on any pre-service debts (including child support arrears accrued prior to their deployment) be reduced to 6% for the duration of their active duty, provided their service materially affects their ability to pay the standard 10% interest rate.
The legal landscape for military parents in California is one of high priority and protection. By enacting Family Code $\S$ 3047 and adhering to the SCRA, the state ensures that parents serving their country do not lose their fundamental relationship with their children simply because of their honorable duty.
Military Service Should Not Limit a Parent’s Rights — And California Protects That
California understands that military parents face unique challenges that civilian families never encounter. Courts do not penalize a parent because of deployment, duty assignments, or overseas service. Instead, they aim to:
- Maintain stability
- Protect parent-child relationships
- Support flexibility
- Ensure fairness in support
- Provide safeguards across borders
Minella Law Group Can Help
At Minella Law Group, we help military families navigate these complex custody and support issues with clarity, compassion, and deep experience.
📞 Call Minella Law Group today at 619-289-7948 to schedule a confidential consultation with one of our family law specialists. We’ll listen to your concerns, assess the situation, and create a clear strategy tailored to your goals.
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*Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalized guidance on your case, contact a licensed California family law attorney