Members of the United States Armed Forces are well trained to expect the unexpected at all points in their careers. However, sometimes the unexpected can affect not only them, but also their spouses and children. Receiving new orders sometimes happens very abruptly, with a minimum of time to make arrangements before shipping out. If you have custody of your children, you may have to act fast to avoid running into trouble.
Your Right to Speak Is Protected
Some spouses will try to file for a parental responsibilities hearing during a deployment or while you are awaiting orders, thinking that with your life in flux, you will be in no position to challenge their wishes. However, in 1940, Congress passed a law now known as the Servicemembers’ Civil Relief Act (SCRA), and SCRA grants an automatic stay of any civil proceedings, usually lasting 90 days, but a judge may extend the stay if they believe that it is in the best interests of the child to do so. The rationale is simple: a soldier, especially a soldier deployed on active duty, is almost never in a position to respond appropriately to such an important document as a custody pleading.
It is important to remember, however, that the primary concern of any Illinois court is going to be the best interests of the child, so if you do end up deployed or otherwise unable to participate in proceedings, there is a possibility the stay will expire while you are deployed. Upon the imposition of the stay, a court is supposed to inform you via military channels of the pending action, after which you can take steps to engage an attorney or otherwise arrange matters to the court’s satisfaction. However, this does not always occur in a timely fashion.
The Best Interests of the Child (and the Job)
Illinois law requires that parental responsibilities be allocated primarily to the person who can best serve the child’s interests and well-being at that time, though it is possible to modify a custody order at a later date. This means that while you are deployed, or if there is a significant possibility that you will be deployed very shortly, the court may grant primary parental responsibilities to your former spouse. This is not because you are a poor parent but because it is seldom in a child’s best interests to live with a parent who may be deployed far from home. Many courts will grant electronic visitation or allow other methods for the parent and child to interact, but primary decision-making responsibility will almost certainly rest with your spouse if you are deployed or assigned a temporary duty station.
Once you have completed your tour, separated from the service, or been transferred back to a location more accessible for visitation, you may seek modification of your custody order. In Illinois, this may be done upon a showing of a significant change in circumstances; usually a change in jobs is enough to grant the ability to seek modification. However, it is important to understand that the right to seek modification does not necessarily mean it will be granted.
Contact an Experienced Attorney
If you need help figuring out how best to approach the issue of custody and visitation, contacting a knowledgeable military divorce lawyer can be a great help. Our passionate DuPage County military divorce attorneys are ready, willing and able to assist you as best we can. Call 630-871-1002 today to schedule an appointment.