Does Military Service Impact Child Custody Decisions?
Child custody in military divorce may be the most debatable divorce issue after discussions of the USFSPA.
Who gets the kids?
Military Brat T-Shirt Unemployed military spouses may have concerns that the service member will be awarded custody based on current income. Service members may have concerns that they may lose custody based on the fact that they have the potential to relocate due to a permanent change of station (PCS) or due to orders for a deployment.
While each state will have it’s own statute, a recent 2013 Nebraska case demonstrates that courts will go beyond what is written in law and evaluate the entire circumstances, in attempt to make a decision on what is best for the military family; the best interest for the children.
On August 20, 2013, the Nebraska Court of Appeals (case No. A-12-823.) denied the appeal of COLLINS v. COLLINS 161 (Air National Guard Danelle Kay Collins, appellant, v. Colby Ree Collins, appellee.)
Their marriage began in 2003 and the family has two children. Full custody was awarded to the nonmilitary spouse father, Colby Collins (represented by attorney Nancy Johsnon). Danelle Collins (represented by attorney Robert B. Creager) has visitation rights. Danelle Collins appealed, claiming the custody decision was based on military service and inconsistent with current Nebraska law.
Nebraska § 43-2929.01 – Passed in 2011 to Protect Service Members
Neb. Rev. Stat. § 43-2929.01 states:
For children of military parents, it is in the best interests of the child to maintain the parent-child bond during the military parent’s mobilization or deployment.(Neb. Rev. Stat. § 43-2929.01(1) (Cum. Supp. 2012))
A military parent’s military membership, mobilization, deployment, absence, relocation, or failure to comply with custody, parenting time, visitation, or other access orders because of military duty shall not, by itself, be sufficient to justify an order or modification of an order involving custody, parenting time, visitation, or other access. (Visitation: Armed Forces. Neb. Rev. Stat. § 43-2929.01(3) (Cum. Supp. 2012)) source
Child Custody Factors used in Nebraska
The original court decision specifically indicated that, in making its evaluation on custody, it had considered the factors statutorily listed in Nebraska Law (Neb. Rev. Stat. §42-364). By law, these custody factors are:
Relationship: the relationship of the children to each parent prior to filing of divorce
Child’s Desire: the wishes of minor children assuming they are of age to comprehend with sound reasoning,
Health: the general health, welfare, and social behavior of the children, and
Abuse: credible evidence of abuse inflicted on any members of the family
The court also specifically noted that it also considered:
Moral Fitness: the moral fitness of the parents,
Environment: the respective environments offered by each parent,
Family Members: the age, sex and health of the parties and children,
Relationship: the emotional relationship between child and parent,
Change in Relationship: the impact on the children as the result of continuing or disrupting an existing relationship,
Mental Factors: the attitude and stability of each parent’s character,
Capability: the parental capacity to provide physical care and satisfy educational needs of the children
Child Preference: children’s preferential desire,
Overall Picture: the general health, welfare and social behavior of the child.
Considering the above factors, the court ruled against Danelle Collins, upheld the original ruling of Judge James D. Livingston and declared that military service was not the only consideration used in the custodial decision for the parents.
What does the Nebraska Military Divorce appeal mean?
Nebraska law declares that military service cannot be the sole reason behind a custody ruling, but it can be used as a factor in the final decision. While it appears the intention of the Nebraska statute was to level the playing field, it had little influence when Colby was able to discredit Danelle by providing examples where she lied during the marriage. (She lied telling Colby she was retained when she voluntarily reenlisted, and also lied about the location of training sessions.) That in addition to her stability situation due to her service career choice, appear to be the ultimate factors used to declare Colby the better choice for custody.
One take away is to be careful of your actions taken as a parent.
A final question might be, “If Danelle resigned her commitment to the military, would she then gain custody?” Per the original ruling and the concurrence of the appeals court, one would assume the answer would be, “No, Colby would still retain full custody” because all factors must be considered for determining custody.
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