Who Gets The Kids 

When Mom Or Dad Is Deployed?


By: Bradley Coates
Special to the
Oahu Island News

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 called up?

            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 exercise custody.

            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.

In 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.

If 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 attorney immediately.

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.