By Capt. S. Chase Allen, 8th Theater Sustainment Command & U.S. Army Garrison-Hawaii Legal Assistance OfficeFebruary 7, 2011
SCHOFIELD BARRACKS, Hawaii - A growing number of deploying parents are facing a battle, not against insurgents or improvised explosive devices, but the possible consequences of a deployment on their child custody arrangement.
For too long, going off to war has meant losing the custody battle back at home; however, a new Hawaii law aims to change all that.
The new law took effect in Hawaii, in 2010, with the express purpose of requiring "special consideration in custody matters involving deploying parents."
The Hawaii law applies in most cases to Soldier-parents who already have a Hawaii court order regarding custody, whose children have lived in Hawaii for at least six months, but have never received a court order from any state.
The new law allows the court to expedite custody cases involving deploying parents. It requires cooperation and communication between the deploying parent and the other parent. It also requires that the custodial parent inform the noncustodial parent of the impending deployment.
The most significant provision in the new law protects Soldiers from having their deployments used against them in determining custody.
In the past, Soldiers may have lost custody as a direct result of their deployment. After redeploying, they had to go back to court to try to have the previous custody arrangement put back in place.
The new law expressly states deployment can't be the sole factor in making a custody award. More significantly, even if a deployment does result in a modification of custody, it will only be a temporary modification, which will expire upon redeployment and revert back to the previous custody order.
Another law provision allows deploying parents to request that the family court delegate their custodial or visitation rights to another person for the duration of their deployment. For example, a Soldier has two children from a previous marriage, he now lives with his new wife, they enjoy weekend visits with both children, and the visitation is consistent with the Soldier's Hawaii divorce decree that entitles him to reasonable visitation. Under the new law, if the Soldier deploys, he can request that his visitation rights be transferred to his wife during the deployment. His wife can now continue to participate in the weekend visits with her stepchildren.
However, a court will only delegate visitation or custody rights if two requirements are met: First, the individual receiving the visitation rights must be either a family member or spouse of the deploying Soldier, or a person with whom the Soldier cohabitates. Second, the person must have an "existing close and substantial relationship with the child."
In all cases, the court will continue to consider the best interest of the child before making decisions.
Learn more about the new Hawaii law
If you are deploying and believe the new law may affect you, call the Legal Assistance Office at 808-438-6725, 808-655-8607 or 808-433-5311.