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THE LEGAL EAGLE

OVERSEAS CUSTODY & VISITATION ISSUES

INTRODUCTION: As a service to our legal assistance clients, we have prepared this handout with frequently asked questions on issues involving custody, visitation, overseas assignments, passports, court orders, and international custody matters. It is, of course, very general in nature since no handout can answer your specific questions. We do ask, however, that you read over these questions and answers carefully in connection with your visit to our legal assistance attorneys so that you may have the fullest information available to help you with your family law problem. Comments, corrections and suggestions regarding this pamphlet should be sent to the address at the end of the last page.

1. Q. MY HUSBAND AND I ARE SEPARATING. HOW ARE CUSTODY AND VISITATION DECIDED? WHAT'S THE BEST SOLUTION?

A. If the two of you are able to reach agreement on the terms for child custody and visitation, then they should be set out in a separation agreement. The more specific the terms of your agreement, the better and easier it will be (ordinarily) to enforce. If you and the other parent cannot agree, then it will be up to the courts to decide the issues of child custody and visitation. This is usually at the time of your divorce.

2. Q. WHAT COURT DECIDES CHILD CUSTODY AND VISITATION?

A. If the child is living overseas and is a “habitual resident” of the country, then these issues can often be determined by the courts of that country. Otherwise it is usually a court in the United States that decides the issues of custody and visitation, and this ordinarily occurs when the child involved is living within the state where the lawsuit for custody or visitation is filed. When the child is located in the U.S. , the proper place to file the suit would be the county where the child has been living for the last six months.

3. Q. CAN A LEGAL ASSISTANCE ATTORNEY HELP ME FILE A LAWSUIT FOR CHILD CUSTODY OR TO ENFORCE VISITATION?

A. No -- You will have to hire a civilian attorney for that. We can, of course, help you to find an attorney to help you obtain child custody, as well as advise you on custody and visitation generally.

4. Q. DO MOTHERS AUTOMATICALLY GET CUSTODY OF THEIR CHILDREN WHEN A SEPARATION OCCURS?

A. There is no automatic preference for either mother or father. The courts look very closely at which parent will best promote the welfare of the children of the couple. The best interest of the children is paramount.

5. Q. WHAT KINDS OF FACTORS DO THE COURTS CONSIDER IN GRANTING CUSTODY?

A. They usually look at who has primarily taken care of the child during the marriage (washing, feeding and clothing the child, for example, or helping the child with homework), who has the best approach to discipline, who has cared for the child since separation (if the couple has already separated), what work schedules either or both parents have, and how each parent can provide for the physical, emotional, educational, religious and social needs of the child.

6. Q. CAN I FILE FOR CUSTODY OF THE CHILDREN HERE IN GERMANY ( KOREA, ITALY, JAPAN, ETC.)?

A. You can usually ask the courts in the country where you or your spouse is stationed to grant you custody of your children who are living in that country. “Habitual residence” and physical presence of the child within the court's jurisdiction (i.e., in the area served by the court) are very important. If you do this, then the courts of that country ( Germany , for example) will decide “which parent has the right to determine the whereabouts of the child,” which is what custody is all about. In many states in the U.S., a foreign court order for custody will be honored as if it were a court order of that state or of a sister state. The Uniform Child Custody Jurisdiction and Enforcement Act, which has been adopted in most states, requires this result so long as the court in the other country had proper jurisdiction over the children when the order was entered, and certain other requirements are met. Note, however, that some nations will not hear a custody case unless at least one of the parents is a citizen of that nation.

8. Q. IF I GET A U.S. CUSTODY ORDER, WON'T I HAVE TO GO THROUGH THE SAME ROUTINE – FILING FOR LEGAL CUSTODY IN COURT - WHENEVER I'M ASSIGNED TO A NEW DUTY STATION IN A DIFFERENT STATE?

A. No. Under the provisions of the Parental Kidnapping Prevention Act, a federal law, and also of the Uniform Child Custody Jurisdiction and Enforcement Act, a law passed by most of the states, each state is required to recognize and honor the custody decrees of its sister states. The court must enforce the other state's custody order as if it were its own order, and it is not allowed to modify the other state's order unless the other state relinquishes or loses jurisdiction. In addition, the above statutes require each state to set up a “custody order registry.” This is a place where you can file or register the custody order you got in another state. That way, the courts in State A , where the child may be visiting a parent, will know that there is a custody order in State B giving the other parent legal custody of that child. Ask your legal assistance attorney about how to register one state's custody order in another state, or else contact a lawyer or assistant court clerk in the second state to find out how to do it.

9. Q. IF THE OTHER PARENT DOES NOT LIKE THE PRESENT CUSTODY ORDER, CAN HE OR SHE FILE FOR CUSTODY IN ANOTHER STATE?

A. Normally, no. Under the above two statutes, the court in a custody case must always inquire into whether the child or children have been the subject of custody litigation in any other state. When a judge finds that another court had jurisdiction and has made an award of custody, the judge should usually refuse to rule on the case or, if in doubt, contact the other judge so that the two of them can sort out which state has proper jurisdiction. Only if the first court lacked jurisdiction or has released or transferred jurisdiction to the new state court may the new state's courts assume jurisdiction to hear the custody case. The court that makes the initial custody determination retains exclusive jurisdiction over custody, absent such a transfer to another state.

10. Q. IF I WANT TO GET A CUSTODY ORDER IN THE OVERSEAS COUNTRY WHERE I'M STATIONED, WILL THE COURTS THERE ALLOW IT?

A. This depends on the law of that country. As a general rule, the answer is yes , so long as the child is a habitual resident of the country at the time you apply for a custody order. A judge will usually refuse to enter a custody ruling if the child involved is living somewhere else , rather than within the court's jurisdiction (the area served by the court). Thus if the mother is stationed in Heidelberg, Germany, but the father and their daughter are back in Ohio, the German courts are not likely to allow mom to proceed with a custody case there. If, on the other hand, mom and her daughter were in Germany and mom wanted to file there for custody because of an emergency involving the father -- such as physical or sexual abuse, attempted kidnapping, substance abuse or domestic violence -- the courts there would probably allow it. Please note that these rules and answers are subject to the law of the foreign country, so check with a local attorney or a host nation attorney at the nearest legal assistance office for more specific questions and answers.

11. Q. WHAT IF I GET A CUSTODY ORDER IN THE STATES BUT I GET “UNACCOMPANIED” DEPLOYMENT ORDERS OVERSEAS. CAN'T I JUST LET MY FOLKS LOOK AFTER MY CHILDREN TILL I GET BACK? AM I REQUIRED TO TELL MY EX-WIFE?

A. If there is a court order or a state law which says so, then you must tell the other parent about any move for the children. Some states (like Virginia ) require advance written notice of change of address to the court and the other parent whether or not the parent is the primary custodian. If the other parent consents or her address is unknown, you may be able to let your parents care for your children in your absence, but you should get that consent in writing or, if appropriate, get a court order. As for “telling your ex” in the absence of a statute or order, your best course of action is to do so. Mary M. Benzinger, a legal assistance attorney at the Army's Legal Assistance Policy Division, comments:

I've seen bad results in private practice with parents who conceal this kind of information. Most courts are not going to look kindly on a parent's failure to tell the other about a deployment. Telling the parent may not be mandatory, but the failure to do so could be disastrous to the servicemember's future custodial rights in the eyes of a court. Some states (like Virginia ) require advance written notice of change of address to the court and the other parent whether or not the parent is the primary custodian.

If there is time, the custodial parent can petition a court to appoint someone other than the child's other biological parent as guardian or custodian especially if the other parent has had limited contact, is unfit,
lives far away from the child's home residence, etc.

The best advice is to get a court order in advance or at least get the other parent's agreement in writing for the child to remain with other relatives.

As a matter of fairness to the other parent of your child, you should advise her of this important change in circumstances. Remember that “the best interest of the child” is the standard all courts use to judge custody matters, and this is presumed to be custody with one of the parents, not some third party (like your parents). If you are gone, the usual choice of the judge for a custodian will be the other parent, unless you can show that the other parent is unfit by reason of abandonment, abuse, neglect, or some other conduct inconsistent with parenting duties. Simply because you have been granted custody in a court order does not mean that you can “cut out” the other parent from caring for the children and delegate this to whomever you wish, regardless of their relationship with the children. Ask yourself how it will look to a judge later on if you withhold information of your departure just so that the other parent doesn't “get the children.” Remember that the other parent may be able to return to court, file a motion to modify custody, and present evidence that she is the best choice for the children's custodian while you are away. Of course, if your ex-wife consents, then the court can transfer custody to your parents in a “consent order” without the need for a trial.

12. Q. WHAT IF MY EX-WIFE FINDS OUT THAT I'M GONE OVERSEAS ON AN UNACCOMPANIED TOUR OF DUTY? DOES THAT MEAN SHE CAN JUST TAKE MY CHILDREN? THAT'S NOT FAIR!

A. Unless your ex-wife's parental rights have been terminated by the court (or her visitation rights suspended), she still has certain rights to see the children. And if there is a custody dispute, it will be up to the judge to decide “what's fair,” not either of the parents. Your ex-wife will need a court order to get custody of your children if you leave. She will have to apply to the court for an order and, except in an emergency, she'll have to serve you with a copy of the motion or petition and a notice of hearing for the trial. As soon as you're served with legal papers, take them to the nearest legal assistance office so the attorneys there can advise you on what to do. In some jurisdictions, such as Washington , DC , it's a crime for a parent with custody under a court order to remove a child from the state with intent to deprive the non-custodial parent of visitation rights. It may be illegal in some states to take the children out of state after a custody proceeding is commenced but before an order is entered. At a minimum, even though there is no prohibition in a court order against removing the children from the jurisdiction, and “intent to deprive” might not be proved, if the move results in a disruption of the court-ordered visitation, the custodial parent may be facing contempt charges. Make sure you check it out with a legal assistance attorney or civilian lawyer (who knows the military and state rules) before proceeding.

13. Q. WHAT WILL THE COURT DO IF MY “EX” PETITIONS THE COURT FOR CUSTODY WHILE I'M DEPLOYED OVERSEAS?

A. It's impossible to tell. If you're only gone for a couple of weeks' TDY, there might not be a problem. If, on the other hand, you're sent to Korea for a year, the court is free to find that a substantial change in circumstances has occurred and award custody to someone else, usually the other parent.

14. Q. CAN THE COURT AWARD ATTORNEY'S FEES TO ME IN A CUSTODY CASE?

A. Under the law of most states, if the person asking for attorney's fees is acting in good faith and is unable to afford the legal expenses of the lawsuit, it is possible (but not mandatory) for the court to award reasonable attorney's fees as part of the custody order. This is not the rule in every state, and you would need to check with your legal assistance attorney or civilian lawyer to find a specific answer to this question for a specific state.

15. Q. CAN A CUSTODY ORDER BE CHANGED?

A. Yes. A custody order is never permanent . However, once a parent is awarded custody in a court order, the judge can change the custody order only if there is a substantial change of circumstances affecting the best interest and welfare of the child or children.

16. Q. IS IT A CRIME TO MOVE A CHILD OUT OF STATE IF YOU'RE SEPARATED, SEPARATING OR DIVORCED FROM THE OTHER PARENT?

A. This depends on state law. Check with a legal assistance attorney or a civilian lawyer for a full explanation. There are several states which make it a crime to take a child, without good cause, out-of-state with the intent to deprive the other parent of his or her custodial rights, even if there's no custody order in place.

17. Q. WILL MY SEPARATION AGREEMENT PROTECT ME FROM THE OTHER PARENT SNATCHING MY CHILD?

A. No. A separation agreement which hasn't been incorporated into a court order or divorce decree is only a contract between you and the other parent, not a court order. A court order is enforceable by contempt of court. Court orders of one state can be filed and registered in another state and thus be treated as if they were issued by the second state for purposes of enforcement. None of this applies to separation agreements which are not incorporated into a divorce decree. If, on the other hand, your separation agreement has been incorporated into a court decree in your home state, then it is a court order and is enforceable by contempt of court. That still doesn't mean that the child cannot be taken, but it does mean that there will usually be adverse legal consequences (that is, legal punishment by the court) for doing so.

18. Q. IF MY SPOUSE IS GRANTED CUSTODY, WILL I GET VISITATION RIGHTS?

A. Ordinarily the noncustodial parent is entitled to reasonable visitation rights with a minor child except in extraordinary situations, such as when the noncustodial parent has a history of abusing the child. Visitation can be flexible and unstructured, assuming the parties can get along and agree on the times and terms of visitation, or it can be highly structured and rigid, with certain days and times set out with great specificity. You can and should outline the terms of visitation in a separation agreement, which will become the court's order if it is incorporated into your divorce decree.

19. Q. WON'T CUSTODY BE SETTLED WHEN I OBTAIN A DIVORCE?

A. Divorce decrees do not necessarily settle custody matters. In some states, such as New York and Wisconsin , all issues concerning the marriage and separation -- custody, child support, visitation, etc. -- are handled at or before the divorce is granted. In other states, such as North Carolina and Delaware , the divorce is handled separate from these issues, and a custody order can be entered before or after a final decree of divorce or dissolution. In those states, a custody or visitation order can be entered before or after a final decree of divorce. In any event, you should remember that you must file a request with the court (sometimes called a complaint, petition or motion) in order to get the court to consider the issue of child custody or visitation regardless of whether it's at the time of divorce or at another time.

20. Q. MY EX-HUSBAND HAS LEGAL CUSTODY OF OUR DAUGHTER. HE SAYS HE'S GOING TO TAKE HER OVERSEAS WITH HIM TO HIS NEXT ASSIGNMENT. CAN HE DO THAT?

A. Unless state law or a judge says otherwise, the answer is yes . A parent with legal custody can usually take a child with him wherever he goes to live in the absence of a court order or law prohibiting this. You, on the other hand, can file a motion asking the court to restrict the daughter's travel, to change custody to you, or to provide for specific overseas visitation rights, including travel costs.

21. Q. CAN HE GET A PASSPORT FOR HER? SHE'S ONLY 11.

A. The U.S. Department of State issues almost 1 million passports annually to children under 18. These passports are valid for 5 years (as compared to an adult passport, which is good for 10 years). He can get a passport for her as well as a military dependent ID card (except under certain circumstances, you have to be 10 years old or above to get one of these).

22. Q. HOW DO I GET A PASSPORT FOR A CHILD?

A. Either parent can apply for a passport for a child who is a U.S. citizen, and all children, regardless of age, must have passports to travel overseas. Applications are available at designated Postal Service offices. You can find all the information, and a downloadable application form, at http://travel.state.gov/passport/get/minors/minors_834.html. Special requirements for children under age 14 are also found at this web page. When a child is under age 14, there are also certain requirements for parental permission. Either both parents must appear at the same time to sign consent for the travel, or else the absent parent must provide a signed, notarized statement Form DS 3053 (Statement of Consent: Issuance of a Passport to a Minor Under Age 14), or all the same information on a separate sheet of paper, or certain other information (including an order granting the traveling parent sole custody of the child). The form can be downloaded from this web page: http://travel.state.gov/passport/forms/ds3053/ds3053_846.html. Information for first-time applicants is found at http://travel.state.gov/passport/get/first/first_830.html. Either parent can request and obtain information as to the issuance of a passport for a child.

23. Q. IF I HAVE OTHER QUESTIONS, WHAT SHOULD I DO?

A. See a legal assistance attorney or private attorney as soon as possible. Your lawyer can answer many questions and help you to make a fair and intelligent decision about your choices, options and alternatives. Our legal assistance office stands ready, willing and able to help you in these matters. Be sure to bring along with you to the interview a copy of any documents or court papers that might be helpful to your attorney. You may also want to read a copy of our LEGAL EAGLE handout on passports and parental kidnapping.

Location and hours of your Legal Assistance Office: _______________________

Information on local agencies, offices and resources: _____________________

[rev. 1/24/08]

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HE LEGAL EAGLE SERIES OF CLIENT HANDOUTS IS PREPARED BY MARK E. SULLIVAN, CHAIR OF THE MILITARY COMMITTEE, ABA FAMILY LAW SECTION AND AUTHOR OF THE MILITARY DIVORCE HANDBOOK (AM. BAR ASSN. 2006). COMMENTS AND SUGGESTIONS SHOULD BE SENT TO HIM AT: 2626 GLENWOOD AVENUE , STE. 195, RALEIGH, N.C. 27608 [919-832-8507]; E-MAIL— MARK.SULLIVAN@NCFAMILYLAW.COM

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