Appointing a Temporary Guardian for Your Child
If you are being deployed and want your children to live with another family member, you have several different options. That family member can petition for guardianship or custody of the child in family court, you can sign a letter giving that family member temporary decision-making rights for the education and health care of your child, or you can appoint that family member as a short-term or long-term care provider in your Family Care Plan.
A single parent with sole custody who enlists in the military is required by the Department of Defense to provide his or her Commanding Officer with a Family Care Plan[1]. This plan appoints long-term and short-term care providers for your child and details how your child should be cared for in your absence. If there is a court order that gives custody to someone other than you, then the Family Care Plan would be subject to the court order.
You are required to have a Family Care Plan[2] if you are:
- A single parent with sole custody of your child
- Part of a dual-military couple with dependent children
- Married to someone who is not the child’s other parent
- Primarily responsible for dependent family members
Could I Lose Custody of My Child If I Am Deployed?
If you are called to active duty or deployed, it is possible that you could lose custody of your child. The courts in New York only consider what is in the best interest of your child. During the recent wars in Iraq and Afghanistan, many enlisted men and women served multiple tours of duty. The absence of the parent in this situation could lead to severe disruptions in the child's life. If the non-military parent makes a request for child custody, the judge can consider extended absences as a factor in granting custody to the parent who had been caring for the child.
Proper notice must be given to the military parent, however, and the non-military parent has a high burden of proof to meet in order to have custody taken away from you. It is also important to realize that, if custody has been granted to the non-military parent, the end of deployment is considered a substantial change of circumstances. This would give you the opportunity to make an application to obtain custody of your child if it was taken away from you.
If you are a military parent, it would be wise to consult with a New York child custody lawyer to help create a situation where it would be difficult to have custody taken away from you. Contact Eiges & Orgel, PLLC.