Our firm represents a lot of military families and for the most part, handling a military divorce is just like any other divorce. There are specific rules that need to be followed, however, and those parents in the military facing divorce, knowing your rights will help alleviate some of the stress associated with deployment and coparenting and divorce.
Special Considerations During Deployment
One unique aspect of divorcing military members with children is related to your parenting time and responsibilities. You will want some provisions in your agreement that deal with lost time while you were deployed, ensuring that your child will be able to see other family members while you are gone, and if you are the parent with the majority of the time, then arranging for care of your child while you are deployed is a major factor.
In Illinois, we recognize these problems and have a statute that allows for relief in parenting time during a deployment. Under 750 ILCS 5/602.7, the allocation of parental responsibilities and parenting time is decided under the “best interests” of the minor child. This statute is used for all parents in a divorce or parentage case, but for deployed persons, we look to section d of the statute. Section d states:
“(d) Upon motion, the court may allow a parent who is deployed or who has orders to be deployed as a member of the United States Armed Forces to designate a person known to the child to exercise reasonable substitute visitation on behalf of the deployed parent, if the court determines that substitute visitation is in the best interests of the child. In determining whether substitute visitation is in the best interests of the child, the court shall consider all of the relevant factors listed in subsection (b) of this Section and apply those factors to the person designated as a substitute for the deployed parent for visitation purposes. Visitation orders entered under this subsection are subject to subsections (e) and (f) of Section 602.9 and subsections (c) and (d) of Section 603.10.”
Taking this statute under consideration allows us to do planning in the event of a deployment.
Best Interests of the Child
The easiest way to understand this provision of the statute is through example. Let’s say a couple-Amy and Jack have a daughter, Susie. When they divorced, they added language to their agreement that described what Amy’s parenting time would look like when she is deployed. Since Amy will miss quite a bit of parenting time while she is deployed, the agreement gave her extra time when she is not deployed. Five years later, Amy marries Robert and is facing a two-year deployment. In the meantime, Robert and Susie have spent considerable time together and have bonded like any father and daughter. The only problem is that Jack doesn’t really like Robert and wants all of the parenting time with Susie and disagrees that Robert should be allocated any parenting time. Section d of the statute will allow Robert to have parenting time with Susie if the court deems it is in her best interest.
Amy seeks to allocate her parenting time to Robert and under the statute, this is permissible. Amy will need to demonstrate that it is in Susie’s best interest to have that parenting time with Robert instead of allocating all of the time to Jack as is detailed in the parenting plan the parties agreed to years ago. The fact that Amy has remarried should constitute a “substantial change in circumstances” but Amy’s burden is to prove to the court that it is in Susie’s best interests to spend some time with Robert. Amy may be able to convince the court to allocate all of her parenting time to Robert, or just a portion of it, but without an agreement from Jack, all Amy can do is take the matter before the court.
This statute isn’t just for new spouses, you can seek to allocate your parenting time to anyone that is important to the child. Some people seek to have grandparents, an older sibling, or even aunts and uncles allocated parenting time when they are deployed. These adjustments to child custody and visitation would be temporary in nature and would govern only while the military parent is deployed.
Factors to Consider in Your Parenting Plan
This statute is not new and every military person we represent puts a contingency parenting schedule into their agreement to deal with deployment. It is hard however to draft and reach an agreement on a contingency such as remarriage and assigning your parenting responsibilities to a person that neither of you knows at the time of drafting. One provision in your agreement however could deal with mediation and so if the issue comes up, it can be resolved without going to court. Other parents are using parenting coordinators and agreements are allowing the parenting coordinator to essentially figure out the logistics of parenting time while you are deployed. If all of that fails, and you cannot reach a resolution with the other parent, then you will have to go into court.
Zoom Court is the Best and Hopefully Here to Stay
Many Illinois courts are still using Zoom, and even if your court is not, ask the judge to allow for a Zoom hearing on your petition so that the deployed spouse can attend. With all of the negative aspects of Covid, zoom court definitely is one of the positives.
Make Sure To Secure Some Type of Online Parenting Time
Parents forget about this aspect of parenting time, so make sure you have a provision in your agreement about using Zoom or Facetime with your child for online parenting time. It is hard to make a specific schedule and of course, there needs to be clearance from the armed forces but having parenting time over the internet will at least allow you to see and speak to your child.
Seek an Expedited Hearing
Unfortunately, the court process can take a long time. The other side tries to unreasonably delay family law matters, and to throw a wrench in the whole thing, will ask for a child’s attorney to be appointed. They will do anything to delay matters. Sometimes it is necessary for your child to be appointed an attorney, especially if the other biological parent is alleging that the person you want to allocate your parenting time is objectionable for any number of reasons. If your ex argues that the person receiving your parenting time is harmful in some way, the judge will need someone to investigate the matter before ruling. Regardless of whether a guardian is appointed or not, ask the court to expedite your case since you should not have to wait 6 months into your deployment before anything is decided.
Focus on Your Deployment
THE COURTS RECOGNIZE YOUR SERVICE TO YOUR COUNTRY AND UNDERSTAND YOU SHOULD BE WORRYING ABOUT YOUR JOB AND DEPLOYMENT AND NOT WHAT IS HAPPENING BACK HOME
One of the worst things about deployment is the worry for your family. The court recognizes that your focus has to be on the deployment at hand and that you should not be stressing about what is occurring at home with your child. Your lawyer can move things along in the courthouse simply by asking the court to move the case on an expedient basis so that you aren’t thinking about it while you are deployed. If your family situation changes after your parenting agreement is entered by the court, seek the modification before you actually need it. Then you will have enough time to work out an amicable solution with your ex, or have time to address the matter in court.
