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California Court Finds Return from Deployment Does Not Confer Automatic Custody Benefit to Deployed Parent

In a recent California child custody case, the court considered a military deployment presumption in California’s family code, clarifying how courts should interpret the statute.

Boarding the PlaneThe Facts of the Case

In that case, a couple married, had two children, and divorced four years later. The mother and father were both active service members in the Air Force. The parents were later stationed in different states and countries at various times. The children lived with the mother and then with the father. When the father was then deployed overseas, the mother was given temporary physical custody of the children, pursuant to Family Code Section 3047. When the father returned from his deployment, the case went to trial on the issue of the children’s custody.

After the trial, the judge said that based on the best interest of the children, the judge would have ruled that the mother be the primary custodial parent because the judge found the mother was more likely to cooperate and facilitate visits with the father. However, the court considered the military deployment presumption in California’s Family Code section 3047, and it found that the statute meant that the children would return to the father after he returned from deployment. The mother appealed.

Section 3047

Section 3047 of California’s family code states that “[i]f a party with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military” that affects the party’s ability to exercise custody or visitation rights, “any modification of the existing custody order shall be deemed a temporary custody order made without prejudice, which shall be subject to review and reconsideration upon the return of the party from military deployment, mobilization or temporary duty.”

In addition, it states in part that if the temporary order is reevaluated after the deployment, mobilization, or temporary duty, there is “a presumption that the custody order shall revert to the order that was in place before the modification, unless the court determines that it is not in the best interest of the child.”

The Court’s Decision

On appeal, the court found the trial court had misinterpreted section 3047. The court explained that Section 3047 states that custody will revert to the order in place before the deployment, “unless the court determines that it is not in the best interest of the child.” Therefore, the best interest of the child is still the “overarching concern” for determining child custody. Accordingly, the appeals court held that the trial court had to reevaluate the evidence and issue a custody order based on the best interest of the children and on the terms of section 3047.

Contact a San Jose Child Custody Attorney

Child custody and visitation is an emotionally sensitive issue in paternity and divorce cases. The involvement of an assertive law firm is absolutely vital to achieving an appropriate custody and visitation arrangement for your family. Experienced San Jose child custody attorney John S. Yohanan has been guiding families through these legal challenges for over 35 years and will work hard to put his experience to use for you and your family. We can help you file for divorce, help obtain a legal separation, or assist you with any other California family law issue. Contact John S. Yohanan at (408) 297-0700.

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