Military Deployment and Custody/Visitation

With the recent military operations in the middle east, and with the utilization of National Guard and Reserves members to fulfill these missions, there has been a great deal of uncertainty regarding how active duty deployment effects custody and visitation arrangements in existence before active duty. The Iowa legislative branch has considered this scenario at least twice, and has developed a framework.

In April, 2011, the Legislature signed into law amendments to Iowa Code 598.41D, which discusses what will happen to a deployed parent's custody or visitation pending his or her return. The most recent version of the law makes it clear that the prior provisions apply regardless of whether the deployed parent was the primary custodial parent or not. That is, the statute applies not only to visitation, but also when the soldier is the primary care parent.

The Statute provides the process for changing care or visitation upon active duty. The parent being deployed files with the Court an application for modification to temporarily assign a family member of the child the deployed parent's visitation or custody rights. The deployed parent must include an affidavit of the person being assigned the visitation showing that individual's knowledge of the circumstances and willingness to assume the parenting time. The deployed parent can also request changes in the visitation schedule, if needed.

Of course, it will frequently be the case that the deployment itself will interfere with the parent's ability to appear at hearings regarding these issues. To alleviate this problem, the Statute allows for an expedited hearing if necessary, to allow the issue to be resolved before the deployed parent leaves. If this is not possible, the Statute also allows for the deployed parent to participate in any hearings "by electronic means," which includes telephone, video teleconference, or the internet.

At the hearing on the requested assignment of visitation or custody, the Court will, as always, be guided by what is in the best interests of the child. In making this determination, the Court has to ensure several facts about the family member assuming visitation or custody. The family member must not be a sex offender, have a history of domestic abuse, or have a record of founded child or dependent adult abuse. On the flip side, the proposed person must have an established relationship with the child, provide financially and personally for the child, and support the relationship between the child and both parents. 

The Court can provide to the family member any visitation that is less than or equal to the parenting time of the deployed parent. That is, if the soldier has visitation with the child of every other weekend, the Court can grant every other weekend to the family member, or less. But this temporary assignment of visitation does not create in the family member any ongoing claim of visitation or custody rights to a non-parent. This temporary assignment ends either automatically upon return of the deployed parent, or upon notification of the parent to the Court, whichever occurs first.

Finally, it is important to note that the absence of the parent for military service does not create a substantial change in circumstances to modify a custodial arrangement later. That is, the non-deployed parent cannot claim that the order on custody and visitation should be amended because the deployed parent was out of the child's life for a year, or did not exercise visitation. 

This process is complex and may take some time, but at least it provides a framework for families that already find themselves in turmoil surrounding active military duty.