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Child custody issues are best settled out of court

As a member of the armed forces, you have become accustomed to moving from place to place, city to city, country to country. However, if you are a parent who is separated or divorced from your child’s other parent, the need to move can have a drastic impact on a custodial arrangement.

Unfortunately, child custody arrangements are generally not subject to federal law. I’m trying to work with lawmakers to change this so that at the very least, reservists who go to war will not lose permanent custody of their children. At the moment, this is not an uncommon problem, and it is my hope that a standard rule of law for child support, custody and visitation can be put in place for service members.

Each state has its own laws that provide the basis upon which courts make determinations when a custodial parent requests the court’s permission to relocate with the child. A majority of states place the burden on the parent requesting to move with the child to show how such a move will benefit the child.

Without compelling circumstances, some courts will prohibit any relocation — which means the service member loses custody if he moves.

There are many components, both legal and factual, that the court will look at to determine whether a custodial parent may move with a child.

Generally, the starting point is whether a valid court order is in place that takes the issue of military relocation into account. In New York, for example, I always put a provision in the custody order of military parents pertaining to deployments and change-of-station orders so that those parents generally don’t lose custody because of their service.

One common misconception I encounter is when the divorced service member goes to war and expects his current spouse — the stepparent — to automatically assume custody.

This is usually far from automatic, and in many states it just doesn’t happen. In New York, the stepparent is the legal equivalent of a stranger for the purposes of seeking custody. Assuming the birth parent is not unfit or neglectful in some way, he or she has a near absolute right to obtain custody if the other parent can’t have custody.

Negotiating with the other parent in an attempt to reach a fair resolution is generally the smartest thing to do; it’s less adversarial than initiating a court action.

When approaching the other parent about your request for relocation, it’s important to take into consideration the tremendous impact the move will have on your child.

Be prepared and open in listening to the other parent’s concerns. You may want to consider offering the other parent significantly more parenting time during the child’s recesses from school and more holiday visitation, and offer to cover some or all of the increased transportation expenses.

Also, when considering whether to relocate with your child, it is most important to consider your child’s wishes and the positive and negative effects that the move might have on him or her.

Finally, it’s worth noting that advanced technology has created many opportunities to keep open lines of communication between you and your child in case of relocation. Besides telephone, other outlets include e-mail, webcams, chat sites and instant messaging, all of which are good ways to keep the communication flowing.

Of course, e-mailing your child is not the same as coming home and getting a hug after a long day in uniform, but if the only other option is no communication at all, I would take an electronic substitute any day.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.