Who Gets The Kids
Mom Or Dad Is Deployed?
Throughout the last year, thousands of National Guard and
Army Reserve soldiers in Hawaii have been told they will be called to
active duty for up to 18 months and deployed to the Middle East. Many of
these citizen-soldiers are parents who are divorced or separated and have
custody of their children. What happens to the kids when mom or dad gets
The answer is a little tricky and depends on the circumstances. For
example, if mom and dad were married to each other and are now divorced,
and dad had been awarded physical custody, dad cannot simply
“transfer” physical custody to a new spouse or some other family
member. Nor does the fact that a deploying service member may have
completed a so-called “family care plan” specifying that someone other
than the child’s natural parent should become the temporary guardian of
the child divest mom of her parental rights (and is not binding upon the
Family Court). In these situations, the natural mother has the absolute
right to the custody of that child if dad is away temporarily and cannot
Any post-divorce motion filed by the divorced non-custodial mom for
change of custody which says, in essence, “Dad is going to be gone for
18 months and I want custody of my kid,” is very likely to be granted.
In this example, some third person (stepmom, grandparent, etc.) who sought
custody of the child would have to demonstrate that mom is an “unfit”
parent. Normally, this would involve extreme situations where mom is
engaged in criminal activity, substance abuse, has psychiatric or sexual
perversity problems, etc.
A change of custody during dad’s absence may not necessarily be
in the best interest of the child, however. The non-custodial parent who
thinks that the other’s deployment is a great chance to get a change of
custody should consider carefully the disruption to the child caused by
leaving an established household, siblings or step siblings, a familiar
school and so forth. Adding all of those readjustment stresses to a child
who is already very anxious about the soldier parent’s safety does no
favor to a youngster.
the same vein, stepparents, grandparents or other caretakers during the
soldier parent’s deployment need to work cooperatively with the
child’s remaining natural parent to ensure that prior visitation
schedules are maintained, medical and school information is freely shared
and so forth. In cases where the deploying parent has either sole legal
custody or joint legal custody, that parent should also execute a limited
power of attorney authorizing the substitute caretaker to exercise
whatever decision-making power he may have (either solely or jointly with
the other parent), during the period of deployment.
Now let’s look at what happens when mom and dad were never
married. The first question is whether the child’s paternity was ever
established. Prior to July 1997, the only way the paternity of a child
could be legally established was through a paternity action in family
court. Since then, however, an alternative process exists whereby a father
can sign a voluntary acknowledgment of paternity at the birthing facility
at the time the child is born. The Department of Health will then issue a
birth certificate that lists the father’s name and constitutes a
determination of paternity. If there has been neither a paternity action
in a court nor a voluntary acknowledgement under Hawaii law (or as
recognized by the law of some other state), the child’s paternity has
not been established. Daddy hasn’t been legally established as being
daddy … he is just some guy who says that he is.
This can have devastating consequences if the natural father dies
or becomes disabled. If dad dies without establishing paternity, the child
cannot inherit from his estate. In addition, in the case of either death
or disability, a child would normally be entitled to payments from the
Social Security Administration. But again, if paternity has not been
legally established, that child will not receive social security benefits.
Assuming that paternity has been established, if there is an
existing court order addressing custody, then the situation is similar to
that of divorced parents. If, however, there is no order (e.g., there are
two natural parents but no custody order), then either parent has an equal
claim to custody.
one is deployed overseas, the other parent probably needs to do nothing
more than call the police and provide a certified copy of the birth
certificate proving parentage in order to have that child immediately
placed under his or her care (and taken away from whatever interim
caretaker the deploying parent may have chosen). Again, the best way to
avoid this is for both natural parents to have a frank and candid
discussion before deployment and try to come to an agreement as to what
will happen while one parent is away on active duty.
The time to deal with these problems is before mobilization and
deployment. Reserve and Guard parents who face one of the problems
outlined above should seek the assistance of a qualified family law
Bradley A. Coates, J.D., has been a practicing divorce
attorney in Honolulu for over 25 years. He has been selected as Honolulu's
best divorce lawyer and is the founder of Coates & Frey, Hawaii's
largest family law firm. Coates wrote an award-winning book on the divorce
process, titled “Divorce with Decency: The Complete How-To Handbook and
Survivor's Guide to the Legal, Emotional, Economic and Social Issues,”
which is now in its second edition.
This article contains only general information and readers
should not take any actions based on the summarized information contained
herein. Instead, appropriate experts should be consulted for each
individual's case and/or fact situation. Phone: 524-4854. Also visit the
firm's website at www.coatesandfrey.com.