California Court of Appeals Held Custody Should Be Reinstated After Return From Deployment

A California appeals court recently issued a decision regarding the child custody rights of two military parents. If you have child custody concerns, you are advised to contact an experienced family law attorney to help you protect your rights.

Two California parents shared joint custody of their son according to a 2006 court order that afforded the father primary physical custody. The order recognized that either parent could at some point be called to active military duty. That order contained a reinstatement directive indicating that if either parent had to leave California for military deployment, the remaining parent would have primary physical custody. The order further provided that upon return of the deployed parent, the parenting directive would be resumed and the father would have primary custody of the child.

The father was deployed to Afghanistan for active military duty in July 2009 through August 2010. In September 2009, the mother moved for an order to show cause seeking sole custody and to move the child to a school located near her home. The father provided evidence that he would be unable to attend the proceedings due to his military service. The court, despite the father’s absence at the hearing, and seemingly without acknowledgment of the 2006 custody order, issued a temporary custody order affording the mother sole legal and physical custody. The order also provided the mother with the authority to choose the child’s school. The court finally indicated that, upon his return, the father could file an order seeking to modify this custody arrangement.

In October of that year, the father sought to vacate all orders handed down after August 2009 and to stay the proceedings until he returned from military service. When the father returned on August 23, 2010, the mother maintained primary physical custody of the child as the court refused to reinstate the 2006 court ordered directive. In February 2011, the father moved for an order seeking custody of the child and a reinstatement of the original custody order, citing California Family Code, Section 3047. The Legislature enacted Section 3047 to provide a fair and expeditious process when parents are trying to resolve custody and visitation issues.

The trial court found that it would not be in the child’s best interests to move him out of his living situation with his mother, and that continuity and stability were the only reasons why it would not agree to revert the child to the pre-deployment custody arrangement.

The court of appeals reversed the decision, first noting that Section 3047 seeks to protect the parental rights of military personnel. The appellate court concluded that the 2006 order’s reinstatement directive was effective as soon as the father returned to California and should have been honored. The court found no serious concerns that would have affected the enforceability of the reinstatement directive, such as (1) the child’s young age at the time of deployment, necessitating a need for a transitional period to slowly move the child back to the original custody arrangement or (2) any mental or physical problems potentially affecting the deployed parent’s ability to raise the child.

If you are a parent who has questions regarding child custody and visitation matters, you should contact Doppelt and Forney, APLC today. Mr. Doppelt is a hardworking Coronado family lawyer who has more than 20 years of experience representing parents in Southern California. Doppelt and Forney, APLC serves clients in Scripps Ranch, Linda Vista, Encinitas, San Diego, and throughout Southern California. For a free consultation with a knowledgeable family law attorney, contact Doppelt and Forney, APLC through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).