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Determining the child's best interests in military custody cases

Being in the military isn't an easy way to make a living and it certainly isn’t easy on marriages and families. Unusual hours and extended periods of deployment can come at any time, making life difficult for a married couple. It is no wonder the divorce rate among service members is higher than the U.S. population as a whole. 

When the relationship ends, the spouse who isn't a service member (dependent is the old military term) may not want to continue living around the base. Many would rather move back closer to their city or state of origin to be closer to their families. Custodial child move-away cases are common and often very contentious. If the petition is granted, it can affect the child's relationship with the non-custodial parent. If denied, the custodial parent will be forced to stay, regardless of their wants or needs. So how do the courts decide? 

Maintaining stability

Stability is essential in cases like these; therefore, the judge will look at how much time the child spends with each parent regularly, as well as the connection that the child has to each of the parents. The judge will also consider how long the current custody agreement during the separation period has been in place, as well as their child's ties to the community. This includes school activities, sports participation, and friends.

The distance from the non-custodial parent

If the custodial parent is planning a short-distance move, the judge may not see it as being too disruptive to the child. If it is out of state or cross-country, things can get more complicated. An overseas move, which is typical for military families, is even more difficult. The judge will need to consider factors such as language barriers, cultural differences, and even potential dangers in foreign countries.

Reason for the move

The custodial parent will need to have a justifiable reason for the move. If the custodial parent is planning the move as a means to interfere with the non-custodial parent, the court will often deny the petition. If the non-custodial parent has evidence of “restrictive gatekeeping,” it can only boost their case. A few examples of restrictive gatekeeping include:

  • Preventing phone calls
  • Neglecting to inform the non-custodial parent about school, their health or their social life
  • Speaking negatively to the child about the non-custodial parent
  • Interfering with visits between the child and the non-custodial parent

The child's age and wishes

Moving away can be detrimental for young children. If the child doesn't have a realistic concept of time, they won't understand when they will see the other parent, which can be hard on them. Also, for very young children to create a strong bond with both parents, they need equal time together.

If the child is 14 or older, the judge will consider their opinion regarding which parent they would prefer to live with.

The ability to co-parent

The hard truth is, some parents just aren't very good at their responsibilities, and that is a key factor that will be taken into consideration. The courts will look at how well the parents communicate and how the custodial parent plans to encourage and maintain communication between the child and the non-custodial parent. The court will also explore the custodial parent's history of putting the child's needs above their own.

The child's relationship with each parent

The court will need to take a close look at the child's relationship with each of their parents. If the child has a closer bond with one parent than the other, it can affect the court's decision. The same is true if there is a conflict between parent and child.

Move-away custody cases are common when military families separate because the family is often living in an area where they have been relocated to the military. If the non-military spouse wants to return home with the children, it can result in a nasty custody battle. 

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