The lives of military personnel are not their own any more. They
serve their country and when they are needed they must respond.
They may be relocated or deployed at a moment's notice. When a
family is involved, the situation becomes even more difficult. When
both people are members of the military and married, they will both
receive a Notification of Selection for Relocation and be relocated
However, the real problem exists when the couple is divorced,
they have children and one parent needs to be relocated. Divorce is
already a difficult situation regardless of how amicable the
separation may be without the added pressures of being in the
military. Dividing personal property and assets is difficult, and
may seem to be the most important part of getting a divorce.
However, when it comes to dividing parenting time, the children in
the divorce have the hardest time. How can the parents
realistically share parenting time when one parent is in one place
and the other parent has been relocated far away? Or when both
parents are in the military and they are both subject for
relocation at any moment, how can a shared parenting schedule
realistically be implemented? The answer is that it cannot.
When a couple is not married, or one parent is no longer married
to the other parent and both serve in the military, the military
will not consider a joint relocation; therefore, one of the parents
will have to get sole physical custody of the child and request
that the child be allowed to relocate with them. The parents will
have to go to court and make a case for what is in the best
interest of the child. In civilian divorce proceedings, they must
also make a case for whether the relocation is a real advantage to
the parent that needs to leave.
In Yannas v. Frondistou-Yannas, 395 Mass. 704, 711, 481
N.E. 2d 1153 (1985), a non-military case about a mother wanting to
relocate to Greece with her child, the Court sets the procedure for
determining the "best interest" of the child in a removal case. The
Supreme Judicial Court adopted New Jersey case law Cooper v.
Cooper, 99 N.J. 42 (1984) at 53) to determine that "the
determination of the child's best interests requires that the
interests of the custodial parent be taken into account.'"
Yannas, at 710; thus provides the "real advantage"
In a military case, the real advantage test, in a way, is
already fulfilled because the parent does not have a choice but to
relocate. The parents' attorneys will then have to make a case for
why it would be in the best interest of the child to stay with one
parent over the other parent. It is a good idea for the parties to
have a guardian ad litem appointed to conduct an
investigation and give the judge a recommendation. In a military
situation, it just is never realistic to have a joint physical
custody agreement because the living arrangement for one parent can
change from one day to the next.
Needless to say, neither parent wants to give up their time with
their children. Each parent may want equal time with their
children, and in a perfect world, a joint custody arrangement would
be part of the agreement. Though for a parent this may be ideal,
for a child it can be extremely detrimental. Parents usually want
to do what will work best for them in a divorce, while forgetting
that the children are the ones who are going to be living in two
different places. Literally moving every week and not having a set
home can make a child feel that his or her life lacks stability.
Not knowing where home is can also be detrimental to a child, as
friends at school have one home and one bed while the child with
the divorced parents is in a different place and different bed
every other week. If the child leaves something at mom's house, he
does not have it for a week while he is at dad's house. This kind
of schedule for a child, although not ideal, can work if the
parents live close by each other. The even bigger problem arises
when the parents do not live close by or when their own schedules
and living arrangements are due to change at any moment - the
situation most military families live with.
For divorce attorneys with clients in the military, it is
important to create an agreement about what would happen if one
parent needs to be relocated or deployed. The agreement would
include which parent would get physical custody and what the
parenting schedule for the other parent would be like. The
agreement should also include a provision about which parent will
claim the child as a dependent for the benefit of receiving the
allotment provided by the military for dependents. The military
allotment is different from the tax credit people receive for
dependents. The military provides a monthly allotment to its
members for their dependents. It does not matter how many
dependents a person has, the allotment amount remains the same.
Having a plan in place from the beginning that allows one parent
sole physical custody and the other parent a parenting schedule can
help give the child a sense of stability and normalcy even in the
event of a relocation, because nothing would really change besides
the child's primary place of residence. If the child is relocated
with the primary custodial parent, then his visits with the other
parent will most likely be just as his visits had been before:
every other weekend or a summer vacation visit. However, the ideal
is not always the most realistic choice, and more often than not
parents end up in litigation. Divorce attorneys need to think about
all contingencies that can affect military families when creating a
separation agreement, such as relocation, money and even death.
Military families should analyze what is best for their children
and what plan will provide the most stability and normalcy for
their children's lives when they already live with so much
Gabriel Cheong, Esq. is principal of Infinity
Law Group based in Quincy. He concentrates his practice in family
law and estate planning. He can be reached at [e-mail Gabriel] or at (617) 273-5110. For more
information, visit www.infinlaw.com.