By Lisa Joachim, Richard A. Mann PC
When a service member or expeditionary civilian has children, it is essential for the member or civilian to have a contingent plan in place should they be deployed for service. The Department of Defense has had a policy in place since 1992 that requires an active service member or expeditionary civilian to establish a "Family Care Plan" detailing the arrangements for whom is to care for dependent children should the service member or expeditionary civilian be deployed. The Department of Defense most recently updated the policy in 2010.
The Department of Defense Instruction 1342.19, requires that a "Family Care Plan" applies to those who are: (1) single parents; (2) dual-member couples with dependents; (3) married with custody or joint custody of a child whose non-custodial biological or adoptive parent is not the current spouse of the member, or who otherwise bear sole responsibility for the care of children under the age of 19 or others unable to care for themselves in the absence of the member; or (4) primarily responsible for dependent family members. DODI 1342.19 Enclosure 1 (1)(b).
As part of a Family Care Plan, each service member or expeditionary civilian must identify the names and contact information of the caregiver and alternate caregiver, provisions for short-term absences and long-term absences, financial arrangements, logistical arrangements, the name of any non-custodial biological or adoptive parent not named as a caregiver, and the name of the person designated in the event of death. DODI 1342.19 Enclosure 3 (1)(c)(1)(a-f).
As part of the Family Care Plan, the service member or expeditionary civilian must also provide the non-custodial parent's consent to the Plan. Specifically, Enclosure 3(1)(c)(1)(e) provides "that if the non-custodial parent does not consent, then the Member should explain the absence of such consent in writing and acknowledge the availability of legal counsel to discuss the associated risks and the best possible courses of action (including the possibility of incorporating the family care plan into a temporary order by a court of competent jurisdiction)."The Instruction goes on to advise the service members and expeditionary civilians that state courts have overriding authority to determine custodial arrangements and failure to inform the non-custodial parent of the Family Care Plan can undermine the Family Care Plan and make it useless. DODI Enclosure 3 (3)(e-f). The revision to the Instruction, in part, recognizes the importance of informing a non-custodial parent of a member or expeditionary civilian's Family Care Plan.
INDIANA SPECIFIC ISSUES
Courts in Indiana have been seeing an increase in custody and parenting time issues involving military members and expeditionary citizens (hereinafter referred to as "military parents"). Indiana has codified statutes dealing with how to address custody and parenting time issues in the event of deployment should parents not have an agreement or if a non-custodial parent does not consent to a third-party caregiver named in a Family Care Plan.
Procedurally, in the event a military parent receives a notice of deployment, Indiana courts are to expedite hearings, and upon motion, may not require a military parent to appear in person for a hearing. Indiana Code 31-14-13-6.2 provides:
(a) Upon a motion of a parent who has received military temporary duty, deployment, or mobilization orders, the court shall hold an expedited hearing to determine or modify the custody of a child or parenting time with a child if the military duties of the parent have a material effect on the parent's ability to appear in person at a regularly scheduled hearing concerning custody or parenting time.
(b) Upon a motion of a parent who has received military temporary duty, deployment, or mobilization orders, the court shall, with reasonable notice, allow the parent to present testimony and evidence by:
- video teleconference;
- Internet; or
- other electronic means approved by the court;
in a custody or parenting time proceeding if the military duties of the parent have a material effect on the parent's ability to appear in person at a regularlyscheduled hearing concerning custody or parenting time.
A military parent or a non-custodial parent may petition requesting modification of the custodial arrangement. Although there is no current case law in Indiana, the statute does refer to the ability of the court to name a third-party caregiver who has a close and substantial relationship with the child to be delegated part or all of the military parent's parenting time. Indiana Code 31-14-13-6.1 provides:
(a) Upon the motion of a parent who has received military deployment orders, the court may delegate the parent’s parenting time, or a part of the parent’s parenting time, during the time the parent is deployed to a person who has a close and substantial relationship with the parent’s child if the court finds that delegating the parent’s parenting time is in the best interests of the child.
(b) If a court delegates parenting time under subsection (a), the order delegating parenting time automatically terminates after the parent returns from deployment.
(c) A court may terminate an order delegating parenting time if the court determines that the delegated parenting time is no longer in the best interests of the child.
Therefore, if a non-custodial parent does not consent to a Family Care Plan, it would be beneficial for the military parent to seek the court's authority to name their designated third-party to be the caregiver through the Indiana courts. Cases where this is most likely to occur are where a child lives in a home with stepparents with other siblings or where grandparents have frequent visitation. A third-party order in Indiana terminates upon a military parent's return.
Often times, if a non-custodial parent is listed as the designated caregiver, the non-custodial parent and military parent can enter into an agreement with the Court. However, if a non-custodial parent is not named the caregiver and does not consent to a third-party being named a caregiver, a non-custodial parent will likely file for a modification of custody with the court. A non-custodial parent, as the biological parent, is assumed to have precedent in caring for the child. Nonetheless, as to not penalize a military parent for their service, a military parent's absences due to active duty cannot be used as a factor in modifying custody on a permanent basis and a non-custodial parent's temporary order terminates no later than ten (10) days after a military parent's return. Pursuant to Indiana Code 31-17-2-21.3:
(a) A court may not consider a parent's absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.
(b) If a court temporarily modifies a custody order due to a parent's active duty service, the order temporarily modifying the custody order terminates automatically not later than 10 days after the date the parent notifies the temporary custodian in writing that the parent has returned from active duty service. This subsection does not prevent a court from modifying a child custody order as provided under this article after a parent returns from active duty service.
When a military parent is deployed for service, it is often considered a temporary change. What happens then if a military parent chooses to voluntarily relocate or their station is changed within the country? Does Indiana Code 31-17-2-21.3 protect a military parent from a non-custodial parent filing a modification in that situation?
Indiana courts have addressed this issue recently. In In re C.S., the Indiana Court of Appeals affirmed a trial court's order granting modification of custody to father and affirmed that Indiana Code 31-17-2-21.3 did not apply to a mother who chose to be stationed in Kentucky. 964 N.E.2d 879 (Ind. App. 2012). The Court found that mother's job was not temporary in nature, was non-deployable to a combat zone and she had the ability to care for the child. Id. at 885. The Indiana Court of Appeals held that although Indiana Code 31-17-2-21.3 (a) generally prevents a court from making a permanent determination while a parent is on active duty, section (b) takes into account impermanency of service by referring to the return of a parent from active duty service. Id. Because the service was not impermanent, the statute did not apply. Id; see also Masters v. Masters, 30A04-1410-DR-488 (Ind. App. 2015 Memorandum Decision)(finding that Indiana Code 31-17-2-21.3 did not prohibit the court from granting custody to father when mother was stationed for three (3) year service in North Carolina).
Military parents and non-custodial parents alike should consult and seek legal assistance in the event that there are disputes over custody of children to ensure children will be cared for and to reduce possible litigation.
This post was written by Lisa Joachim of Richard A. Mann PC. If you would like to submit content or write an article for the Family Law Section page, please email Rachel Beachy at firstname.lastname@example.org.