As a former member of the armed forces and a military divorce attorney in Charleston, it’s been my privilege to help mothers and fathers who face challenges in custody and visitation because they’ve been deployed for duty. Because members of the armed forces can be deployed, relocated, or stationed in another state or a hostile location overseas, issues surrounding child custody and visitation can be complicated. To address this situation, South Carolina has a law known as the Military Parent Equal Protection Act (MPEPA). In this article, our Charleston military divorce lawyers explain how the MPEPA lessens the impact that military service has on a parent’s custody and visitation rights when they’re deployed.
Who is Covered in South Carolina Under the Military Parent Equal Protection Act?
The MPEPA does NOT apply to ALL types of orders or mobilization. Instead, it applies to military personnel who meet a specific definition of “military service.” If the military parent is a member of the Army, Navy, Air Force, Marines, Coast Guard, or Reserves, the parent is in “military service” for purposes of the Act if he or she is deployed for combat, a contingency operation, or a natural disaster when the military order would not allow a family member to accompany the serviceman on deployment. If the parent is a member of the National Guard, the parent is in “military service” for purposes of the Act if called to active service by the President or Secretary of Defense for a period of more than 30 consecutive days responding to a “national emergency.”
How Does the Military Parent Equal Protection Act Help a Service Member?
In the past, some civilian parents have attempted to gain an advantage when the other parent was deployed by seeking to modify an existing order for custody, visitation, or child support. Civilian parents have also attempted to argue that the deployment means that the military parent isn’t in a good position to have custody or regular visitation due to the uncertainty of the military parent’s schedule. The MPEPA attempts to remove any advantage the non-military parent would have in a custody modification action and to assist in making prompt adjustments to accommodate any time of deployment.
If a service member is given orders that count as “military service” under the Act’s definition, the court can issue a temporary order making reasonable accommodations for the parties because of the military parent’s absence, and that order will terminate upon the military parent’s return. Even if a temporary order isn’t issued to accommodate the absence, the non-military parent is required to give reasonable visitation to the military parent during any time of leave. If there is no existing order establishing custody or visitation, and deployment is imminent, then the court must hold an expedited temporary hearing to address issues of short-term custody, visitation, and support.
If the military parent is required to be separated from a child due to military service, the family court can’t issue a final order modifying the terms of custody or visitation in an existing order until 90 days after the parent is released from military service. Also, a military parent’s absence or relocation due to military service can’t be the only factor supporting a modification of an existing order. In other words, the deployment shouldn’t be held against the military parent.
In South Carolina, Can Child Support Be Affected During a Parent’s Military Deployment?
It can be. If a military parent is called to service, then under the MPEPA either parent can request that the family court issue an order temporarily adjusting child support based upon any temporary increase or decrease in pay during the deployment. After the deployment ends, the child support automatically reverts to the original amount. Any “hazard pay” or the like can’t be used to permanently set child support.
How Does the Military Parent Equal Protection Act Impact Attorney’s Fees in South Carolina Family Court?
In a civilian divorce in South Carolina, a family court judge considers 4 factors in determining whether to award fees to one party: (1) each party’s ability to pay his or her own fees, (2) the respective financial condition of each party, and (3) the effect of the fee on each party’s standard of living, and (4) the beneficial results obtained by the attorney. Under the MPEPA, the court also considers whether either party didn’t reasonably accommodate the other based upon the deployment, whether either party caused any delay in the process, and whether either party did not timely exchange complete financial information.
The MPEPA specifically encourages parents to act reasonably to negotiate arrangements prior to mobilization. The MPEPA also requires the parents to cooperate in exchanging information to facilitate an agreement. Immediately gather your LES statements and other relevant information. Be prepared to show your pay both before and during your deployment. Remember that the MPEPA requires a prompt exchange of financial information between parents to determine child support.
How Should Military Parents Deal with Their Children When They’re Deployed?
Reassure Your Children. Telling a child that you’re going away isn’t easy. Before you leave, give your children advance notice. Using age appropriate terms, help them understand how long you will be gone and reassure them that you are trained to do your jobs and how to stay safe. Tell them who will be taking care of them while you are away. Also, reassure them that you will be thinking of them while you are going and remind them how much you love them.
Plan to Stay Connected With Your Children. Invite your children to come up with a plan to stay connected such as regular emails, using Skype or FaceTime, and sending cards and letters.
Be Strong While Letting Kids Be Kids. Avoid appearing tense or anxious about the situation otherwise your children will tune into your emotions and feel threatened by your deployment. Also, don’t you’re your child to be the man or woman of the house while you’re away. Kids need to be kids, so don’t put that burden on them.
Spend Extra Time With Your Children. Spend as much quality time with your children as possible. While you’re together, take plenty of photos and videos of these times for your children to hold on to until you’re together again.
Military Divorce Attorneys in Charleston
Before you’re deployed, schedule an appointment with a family court lawyer who is familiar with military divorces. At Futeral & Nelson, we can help you determine what your rights are and assist you in making accommodations without the need for court. If it looks like we will need to go to court, we can protect your rights now and while you are away.