Prior to September 2015, a military parent who was subject to child custody proceedings could lose custody of his or her child permanently while if for active duty. Courts were able to use the military parent’s deployment as evidence of absence from the child’s life and as absence from court proceedings. Therefore, this allowed a non-military parent to change custody of the child permanently. Once a military parent returned from fighting for this country, he or she would have to go back to court to fight for custody.
The Michigan legislature recognized the disadvantage of military parents and added two new laws to the Child Custody Act for the specific purpose of protecting military parents.
Pursuant to the new statute, MCL 722.27, non-military parents are now forbidden from filing any motion for change of custody while the military parent is deployed. Additionally, the court is prohibited from entering a new order or even amending current order concerning permanent custody of the child. However, a court may issue a temporary custody order, which is limited to a specific period of time.
Once a military parent returns from deployment, he or she must notify the court within 30 days of his or her return. Afterwards, the court will return custody of the child to the military parent in the same manner prior to deployment. In effect, custody will be exactly the same before and after deployment.
I recently encountered this situation with one of my clients, who is a mother and an active member of the military. Prior to my client’s deployment for basic training, the Court awarded her primary physical custody of her son. Once she deployed for training, she was required to relinquish physical custody of the child and the father agreed to take primary physical custody during this time. However, upon the mother’s return from basic training, the father refused to return physical custody of their child. I was able to prevail on a motion for change in custody under the new statute and return primary physical custody to the mother.
The new statute provides great protection for concerned parents who are active military members. However, the statute will not stop some non-military parents from unfairly taking custody of children while the other parent is on active duty. If you are an active military member with a custody order, speaking with a family law attorney is a good way to ensure the status quo of a custody order does not change while you are deployed.
Paul B. Addis is a shareholder with O’Reilly Rancilio, P.C., located in Macomb County. Paul specializes in many areas of practice, including domestic relations issues, divorce, child custody, child support, alimony, asset division and other family law matters.