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Overseas Child Custody Litigation

Custody Litigation Issues Under the UCCJEA

The provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) have been implemented in most jurisdictions in the United States. The purpose of the UCCJEA is to establish judicial standards and procedures for determining child custody issues between parents who live in different states.

Ordinarily, the state court that rendered an order concerning separated parents’ rights regarding the responsibility for the care, custody, and control of their children retains jurisdiction over proceedings for modifying the terms of the custody arrangement.

However, issues involving competing jurisdictional claims between state courts began to increase as divorced parents started living in different states. In response, states ratified the provisions of the UCCJEA to resolve such jurisdiction issues.

The procedural requirements and substantive provisions of the UCCJEA are particularly relevant when it comes to military families. Because military duty often requires servicemembers to move around, strict compliance with the terms of a custody order can be a major challenge.

To address this issue, states have enacted laws concerning the rights and responsibilities of parents where one of them is a military servicemember living in a different state or country. For example, California Family Code § 3047 provides relief to servicemembers who cannot comply with their child custody obligations due to military service.

Under Section 3047, a servicemember’s noncompliance with a custody and visitation order does not serve as a valid basis for modifying its terms because of:

  • Activation to military duty
  • “Temporary duty yonder” assignments
  • Mobilization to support military combat operations
  • Deployment to overseas combat areas

Application of the Servicemembers Civil Relief Act

In addition to state law protections for military members serving overseas, one must consider the application of the federal Servicemembers Civil Relief Act (SCRA) when litigating custody issues. The provisions of the SCRA provide procedural protections to prevent state courts from holding the servicemember’s overseas duties against them in lawsuits that require their presence.

Among the protections provided by the SCRA are:

  • Filing requirements for lawsuits: The plaintiff naming a military servicemember must provide the court with an affidavit concerning the nature of the defendant’s military service.
  • Counsel for absent military servicemembers: A military servicemember who cannot appear due to their military duties is appointed counsel to represent their interests in court. If appointed counsel cannot ascertain the location of the military defendant, their actions cannot be held to prejudice the servicemember.
  • Automatic stay of legal proceedings: If the military servicemember’s presence is necessary for an effective defense against a legal proceeding, the court must stay the proceeding for at least 90 days.
  • Temporary custody orders: If a military servicemember’s overseas deployment prevents them from complying with a custody order, a court may not modify the custody order as a result. Instead, courts must issue a temporary custody order commensurate with the length of the servicemember’s deployment.

Need Legal Advice? Moshtael Family Law Is Here to Help

When it comes to California family law matters such as military divorce, you can count on the legal team at Moshtael Family Law. We have more than 135 years of collective legal experience in litigating and negotiating cases involving California family law.

For a consultation exploring your legal rights, contact Moshtael Family Law at (714) 909-2561 today. We're proud to offer military discounts.