How Utah Child Custody Works When One Parent is in the Military

Child custody is always a complex decision, and there are even more factors to consider when one parent is a member of the U.S. Armed Forces. If you or your former spouse serves in the Army, the Air Force, the Marine Corps, the Navy, or the Coast Guard, you’ll want to familiarize yourself with Utah’s custody laws for military members. In this article, we’ll explain why you can’t lose child custody for being deployed, and go over some other key points for servicemembers.

Laws Protecting Custody Rights for Military Members

The Defense Manpower Data Center (DMCD) tracks military statistics, including the number of military members by state. According to DMCD reports from August of 2013, more than 4,000 Utah residents are on active duty, the majority of whom are members of the Air Force. For these thousands of service members, divorce and custody present a unique set of legal considerations.

wedding rings representing plaintiff and defendant in divorce in court

These considerations are chiefly addressed by Utah Code § 30-3-40, which governs “custody and parent-time when one parent is a service member.” (Parent-time refers to visitation, or the time non-custodial parents get to spend with their children. If you’re interested in learning more about Utah’s visitation laws, you can find detailed information in our article about parent-time schedules for Utah residents.) This statute defines service members to be any of the following:

  • Members of the Utah National Guard.
  • Reservists on Utah bases.
  • Members of the U.S. Armed Forces who are (1) currently on active duty, and (2) stationed in Utah.

For many military members, the most pressing question is probably what happens to custody in the event of deployment. If you’ve found yourself worrying about this issue, you can set your mind at ease. Even if you are deployed, your custody rights are still protected under Utah Code § 30-3-40(5), which states the following:

“A service member who is deployed, mobilized, or ordered to temporary duty may not be deprived of custodial or parent-time rights while unavailable pursuant to military orders.”

In other words, your custodial rights cannot be taken away simply because you have to leave home to fulfill your military duties. The statute is firm on this point.

However, your former spouse may not be familiar with this provision. So what happens if your ex-husband or ex-wife tries to obtain custody anyway?

If you find yourself in this scenario, try not to panic: again, the statute defends your legal rights as a parent, stating that “any petition, motion, or action brought by a parent or guardian before a court attempting to deprive or alter custody or parent-time rights shall be stayed” (suspended).

This is not merely state law, but federal law established by the Federal Service members Civil Relief Act (SCRA). The SCRA applies to all service members who are on active duty. Its protections take effect beginning on the date the service member enters active duty, and usually end between 30 and 90 days of the date the service member is discharged from active duty. If you’d like more information about how the SCRA affects Utah residents, feel free to browse the Utah Court System’s SCRA page. If you’re looking for a specific form, scroll down the bottom and choose the appropriate form from the bullet-point list.

Your Responsibilities if You Are Mobilized or Deployed

Finally, if you are a military member and did not make your own parenting plan, you should be aware of the following points:

  • If you are the custodial parent, and you are mobilized or deployed, you should contact the non-custodial parent “as soon as practicable after receiving orders” to inform them of the dates you will be away.
  • If you are the non-custodial parent, and you are mobilized or deployed, your visitation rights will pass through to another “family member with a close and substantial relationship” to the child, for as long as you are away. This might be a grandparent, a sibling, and so forth. You must give the custodial parent advance written notice informing them of the dates you will be absent.

If your former spouse tries to take custody away from you because of your military duties, they will quickly find they do not have legal authority to do so. Nonetheless, it is always prudent to contact an experienced child custody lawyer if you’re concerned about a potential dispute or problem. Your attorney will protect your rights and will make sure you understand your legal responsibilities as a divorced parent. It may even be possible to settle the matter through mediation, which tends to be quicker and less costly than litigation.

sign of couple getting divorced

If you’re a military member going through a divorce in Utah, you have special legal rights. Salt Lake family law attorney Darwin Overson will help you understand and exercise them. To talk about your custody questions in a free and completely confidential legal consultation, call the law offices of Overson & Bugden at (801) 758-2287 right away. Our phone lines are always open for your call, including nights and weekends.