Servicemen and women of the United States military often receive new deployment orders – sometimes quite abruptly. So, what happens if an active member is going through a divorce and a child custody dispute?
According to the Servicemembers’ Civil Relief Act (SCRA), the court may grant an automatic stay of any civil proceedings. This automatic stay may last up to 90 days or longer, if a judge believes an extension is in the best interests of the child. The main reason why SCRA was enacted by Congress in 1940 was because a service member deployed on active duty would have an extremely difficult time attempting to respond in a custody case.
In addition, the divorce statutes of the Illinois Marriage and Dissolution of Marriage Act were updated in 2012, resulting in the following key changes for U.S military parents:
An order to partially or completely modify child custody because of a military parent’s deployment must also include that after a set amount of time after the end of employment, the pre-deployment custody order is reinstated.
If a custody case involves a parent who is being deployed or received orders to deploy, the parties involved will be given expedited priority to have their case heard in court.
If a parent is deployed, he/she may participate or testify in a hearing via telephone or other electronic means, such as Zoom.
The deployed parent may designate someone (with permission from the court) to exercise visitation rights on behalf of the deployed parent, based on an existing custody order.
A parent cannot use the fact that the other parent is absent or fails to comply because of deployment as a sole ground for filing a petition for modification.
Illinois divorce laws protect the custodial rights of parents in the U.S. military while they are deployed and upon return from deployment, ensuring the courts consider the challenges associated with being an active service member and the need for the child to have a meaningful relationship with the military parent. However, the heart of every court decision regarding child custody lies in the child’s best interests.
If a parent has received a deployment order or anticipating such orders, the court will consider this and may award the other parent with primary custody, while the military parent can be granted electronic visitation or given other methods to interact with the child. Yet, when the service member is no longer on active duty, no longer expecting deployment in the near future, or no longer on active duty, the existing custody order can be modified.
If you are interested in a military divorce in Chicago, call the Law Offices of Jonathan Merel, P.C. at (312) 487-2795 or fill out our online contact form today to request a consultation. We have been serving the Chicagoland area since 2009!