Divorce and child custody can be one of the most trying experiences people face in their life. Emotions run high and litigation can go on for months or even years. The life situations of the parties involved can make custody arrangements very difficult. For example, families that have one or both parents in the military encounter difficult challenges when one parent gets deployed. If you have a custody hearing, it is important to speak to an experienced family law attorney that can determine the best course of action for your unique situation.
California Family Code § 3047 (“§ 3047”) protects the custody rights of service members while on deployment. § 3047 establishes a presumption that a service member returning from military service should regain his or her pre-deployment custody rights unless a court can determine that it would not be in the child’s best interest. Recently, the fourth appellate district ruled on a § 3047 case titled In re Marriage of E.U. and J.E.
Facts of the Case
In the case, two military parents divorced in 2006. The 2006 divorce decree had a reinstatement directive that stipulated if military deployment required one parent’s absence, the non-deployed parent would assume the primary duties, but the parenting plan would be re-established upon return of the deployed parent. The divorce decree also established that the child would attend Oceanside school near the father’s home.
From July 2009 to August 2010 the father was deployed in Afghanistan. The mother set several hearings to determine custody. Deployment prevented the father from attending the court hearings according to command letters provided to the courts during the hearings. The trial judge at the time of the hearing granted temporary orders giving legal and physical custody to the mother. The temporary orders also permitted the mother to enroll the child in a school near her home.
Upon the father’s return, he filed several requests to vacate the temporary orders and reinstate the custody directive in the divorce decree. Between October 2010 and January 2012, the trial courts did not reinstate the 2006 directive. The delay was in part due to the courts requesting a report to determine the child’s best interest and requiring a new custody hearing. The father also contributed to the delay because of problems with court filings.
In January and February of 2012, the state completed the report and a new custody hearing proceeded. The report did not indicate any serious concerns with either parent and found that the child’s interest would be fine with father. However, the report recommended that the child’s interest would be best served by granting the mother primary custody in order to maintain stability with family, friends, and the school. The trial court granted the mother primary custody citing the time the child was in mother’s custody as a significant factor.
Appellate Court’s Decision
The appellate court reversed the trial court’s decision stating that the case exemplified the exact problem with military deployments that the California legislature had tried to fix. Non-deployed spouses could gain temporary custody and then later argue that the time in their custody supported child’s best interest in gaining permanent custody. Basing custody solely on the best interest of the child would give § 3047 no meaning.
The court held that, upon return of a deployed parent, any temporary orders due to deployment would be vacated, the original orders should be reinstated, and the court should have a “limited” hearing to determine the best interests of the child. The child’s best interest should be limited to serious concerns with the deployed parent.
Parents can face difficulties in a legal struggle over child custody and visitation. A multitude of contentious issues based on the unique situation of the parties involved can make custody cases both difficult and heart wrenching. Our experienced lawyers can evaluate your situation and help you understand the legal system while protecting your rights.
San Jose Divorce Lawyer, John S. Yohanan, has extensive experience handling both child custody and visitation. If you want a family lawyer with more than 30 years of experience on your side, call our office at (408)297-0700.
California Family Code § 3047, 2014, Justia US Law
More Blog Entries:
California Appeals Court Holds a Voluntary Declaration of Paternity Not a Guarantee of Presumed Father Status — In re Jovanni B., Jan. 30, 2014, San Jose Family Law Blog
Facebooking Is a Bad Idea during and after a Divorce, Jan. 12, 2014, San Jose Family Law Blog