Fighting at Home and Abroad: Child Custody and Visitation of Deployed Service Members

One of my very articulate colleagues, Ron Barriere, has done a lot of work with military divorces and has been drafted during my involvement in a very difficult trial to provide a post detailing them.


The concurrent conflicts in Iraq and Afghanistan have led to the combat deployment of millions of American men and women. The bravery and sacrifice of our troops is self-evident and is justifiably celebrated. However, an unfortunate byproduct of their service is the strain on their home life, and a corresponding increase in family law litigation involving service members. In the past decade, the number of service members involved in divorce actions increased steadily before leveling in 2010.  These statistics reflect only a fraction of a much larger problem: they do not include the vast number of modification and contempt actions involving previously divorced service members relating to support, visitation, and child custody.

Active duty and reservist service members face challenges beyond those which civilian litigants face in the Massachusetts Probate and Family Court. From matters as (seemingly) simple as jurisdiction to more complex substantive issues such as the valuation of military pensions, service members can become overwhelmed – or worse – surprised by family law litigation.

The potential for deployment can sometimes be used against service members, particularly by non-service member co-parents in modification actions involving children. Too often, mobilized service members will simply ignore conflicts – and even pending and impending litigation – on the home front to focus instead on their duties overseas. Similarly, former spouses or co-parents may simply “sit on” a cause of action until the service member has been deployed to gain an unfair advantage.

While the Service Members Civil Relief act and other federal and state statutes afford some protection to deployed service members, these protections are not absolute. Men and women too often return from deployment to find their visitation rights, earnings, assets, and – sometimes – even their ranks – have been compromised by their failure to consult with and/or retain civilian counsel and adequately prepare for a potential dispute in advance.

A carefully crafted divorce agreement or judgment can resolve many complications before they arise. For example, service members with children should insist upon a detailed parenting plan that contemplates the transience of military life and the potential for deployment. Contingent parenting plans that self-adjust in the event of relocation or deployment can be fashioned to protect service members from future litigation. If there is no such plan in an agreement or judgment, the notice of mobilization itself can justify a modification action to adjust child support, delegate visitation rights to the deployed service members family, and in some cases, even reexamine custodial orders.

As is the case in the civilian context, an ounce of prevention is worth a pound of cure: mobilized service members can and should consult with both a civilian divorce attorney AND local JAG counsel as soon as possible to ensure their rights are not compromised as the result of deployment. A soldier is trained to minimize risk whenever possible on the battlefield; he or she must also be careful to minimize the risk of harm to family life at home.