Deployment and Custody Issues: How Orlando Courts Handle Military Service

How Is Child Custody Determined in Florida?

Child custody is a term for the rights and responsibilities of parents to care for their children and make decisions on their behalf. Florida courts give no preference to either mothers or fathers and base their custody decisions on the best interests of the child. The term “time-sharing” refers to the amount of time the child spends with each parent. Factors the court considers include:

• The ability of parents to have a continuing, close parent-child relationship and honor the time-sharing schedule
• The ability of parents to put the needs of the child first and make decisions in his or her best interests
• Moral behavior and physical and mental health of both parents
• Length of time the child has lived in a satisfactory, stable environment
• The child’s preference for custody or time-sharing arrangements, if old enough to decide

What Are the Special Considerations for Child Custody in Military Divorces?

A military divorce is subject to the same Florida law on child support, parenting, and time-sharing as any other divorce. As always, the court makes child custody decisions based on the best interests of the child. Special considerations in child custody cases when a parent is in the military include deployment, leave, and relocation. If a parent in the military is regularly deployed, the court may rule that the child’s interests are best served by awarding primary physical custody to the parent who is not deployed or not in the military. 

Under state law, consent from the other parent or a court order is required if one parent plans to relocate 50 miles or more. A parent in the military ordered to relocate must meet the same criteria. The service member must obtain the agreement of the other parent or approval from the court.

How Does the SCRA Protect Members of the Military in Child Custody Matters?

The Federal Servicemembers Civil Relief Act (SCRA) provides protection against entry of court orders and stay (postponement) of civil proceedings for military members on active duty. It ensures that military service will not interfere with the rights of a parent to be involved in the legal process in which child custody, child support, and time-sharing are determined. When a party is unavailable due to military service:

• Divorce proceedings are put on hold;
• No permanent orders modifying existing child custody arrangements may be entered; and
• Servicemembers with visitation rights may petition the court to have those rights delegated to a third party, such as a grandparent or a new spouse, during their absence due to military service. 

What Aspects of an Orlando Divorce May be Affected by Military Service?

Marriage is dissolved for military members under the same state laws that apply to civilians. However, unique protections and rules may apply when one or both spouses are members of the military. The following aspects of divorce may be affected:

• Residency requirements for filing a petition for dissolution of marriage: To be eligible to file for divorce in Orlando, either or both spouses must have resided in the state for at least the previous six months—military members who are stationed elsewhere but claim Florida as their home state may still establish residency.
• Service of process: As in any civil cause of action, service of process on the party being sued for divorce is required. Under the SCRA, if a spouse being sued for divorce is on active military duty, the entire divorce process may be delayed until that party’s active duty ends. The purpose of this provision is to protect military personnel from being divorced without being able to respond or even being aware of the proceedings. 
• Child custody and support issues: Family law courts follow the same guidelines in military divorces as they do in civilian divorces for decisions regarding child custody and support. The best interests of the child are always paramount. However, there may be special child custody provisions if one or both parents are in the military because of the possibility of deployment or relocation. 
• Division of marital property: A military spouse’s pension is considered marital property under the federal Uniformed Services Former Spouses’ Protection Act. Florida family law courts may award up to 50% of a service member’s retirement pay, less certain deductions, to the other spouse in a divorce. The act recognizes the rights of state courts to distribute military retired pay to spouses or former spouses and provides a way to enforce those orders through the Department of Defense. If a military member was on active duty at the time of the divorce, that servicemember’s rights under the SCRA must have been observed during the state court proceedings. A percentage or hypothetical formula may be used for a retired pay award if the military spouse is still on active duty at the time of the divorce. 

How Can an Experienced Orlando Divorce Attorney Help?

Divorce can be a complicated and challenging process, and even more so when one or both spouses serve in the military. Your best chance of obtaining the most favorable outcome in child custody and other issues is to have an experienced family law attorney handling your case. At The Law Office of Erin Morse, we have a thorough understanding of military issues and have successfully handled many military divorce cases. Contact us for the help you need at (407) 743-6059.