Child custody is a difficult issue that many parents face. Things may change over time,…
Regardless of lifestyles or careers, all parents want to spend quality time with their children. If you’re a service member co-parenting with your ex, figuring out custody and visitation arrangements can be challenging. If you already have an agreement in place, but it doesn’t provide for a military move, you and your ex can seek to modify the agreement. However, specific requirements must be met, and both parents must agree to the changes. Keep reading to learn more about what is required to modify a child custody order, the applicable federal and state laws, and how an attorney could help.
What Is Required to Modify a Child Custody Order?
If a child custody order is already in place and does not provide for a military move, both parents can work with the court to modify the order. However, remember that child custody orders are typically subject to state laws, and the court will consider these laws when deciding whether a service member can modify an order for a move. According to state law, the court can modify or change a prior order of residency, custody, visitation, and parenting time if either party shows a material change of circumstances. A material change of circumstances includes substantial and continuing changes that make the terms in the original order unreasonable or impossible.
Servicemember Rights Under Federal and State Law
The Servicemembers Civil Relief Act (SCRA) protects service members’ rights while on active duty. The act covers individuals such as:
- Active-duty members of the regular force
- Members of the reserves called to active duty
- Coast Guard members serving on active duty in support of the armed forces
- Members of the National Guard while serving in active-duty status under federal orders
- Dependents of service members
Under the SCRA, service members may:
- Obtain a delay of court or administrative proceedings if their military service materially affects their ability to proceed in the case
- Receive an automatic stay of 90 days in legal proceedings when requested in writing
Like other states, Kansas has laws that protect service members’ rights in custody cases and prohibit parent-child separations due to military service from determining child custody decisions. Under state law, the failure to comply with a custody order by a parent who receives deployment, mobilization, temporary duty, or unaccompanied tour orders from the military does not, in itself, constitute a material change in circumstances permitting a permanent change to the order. As such, a non-military parent may only temporarily change a child custody order due to the military parent’s deployment or mobilization. A military parent returning from deployment, mobilization, temporary duty, or unaccompanied tours may file a motion with the court to amend or modify the temporary child custody order. By law, the court must prioritize the case, and a hearing must be set within 30 days of filing the motion. Furthermore, the non-military parent has the burden of proving that reinstating the original child custody order is not in the child’s best interests.
The act also protects a service member’s visitation rights during deployment. Those rights can be delegated to another family member with a substantial and close relationship with the minor child, such as a grandparent.
Explore Your Legal Options Now
If you are a service member with questions about modifying a child custody order for a military move, you need an experienced, compassionate family law attorney to fight for your rights and interests.
At Colgan Law Firm LLC, we understand your predicament and can help you modify a custody order to meet your child’s needs. Call us at 913-721-9999 or contact us online for a confidential consultation with one of our lawyers in Kansas City, Kansas.