Military members move. We deploy, PCS, and go on short tours. In some branches and career fields it's predictable, but sometimes it comes at the drop of a hat, but the fact that a move will eventually happen is basically a guarantee, so why do we draft custody arrangements that don’t acknowledge this reality? Why do we draft parenting plans that pretend we are going to stay put for up to eighteen years! The reason is that most lawyers don’t understand the military or our reality. They are used to the civilian family that lives in the same place predictably, who can CHOOSE to stay put until their children are grown. They act like we are the same, but we aren’t. That move is coming and your parenting plan should reflect it.
What a standard parenting plan looks like:
I'm sure by now, you likely know what the standard parenting plans look like. They are related to how close you and your co-parent are to your kids. If you are both close its likely 50/50. If you live farther away, it’s likely weekends and holidays. If you live even farther, it may only be major holidays and school breaks. So, what happens if your arrangement says you only get weekends and suddenly you PCS where your kids are? If you have a great co-parent, you can just agree to amend your custody order, but if you don’t (and some of us don’t), you are going back to court. You are going to spend thousands of dollars on attorneys and court costs to amend your custody schedule to reflect your new reality and spend months in
limbo while you wait for the court to work it out. But it doesn’t have to be this way!
So, what should you do?
First off, you can build the contingency into your custody schedule. Those standard schedules we discussed above? You can put ALL of those into your custody agreement. For example, it can say:
If we live within the same local area then our arrangement is 50/50 (it should define what this means, every other week etc.);
If we live outside the local area, but reasonably drivable (probably less than four hours, but of course it’s up to you!), then one or two weekends a month and holiday weekends;
If we live farther (maybe 4-6 hours), one weekend every other month and holidays;
If we live even farther or out of the country: major holidays and breaks
This is just one example. The world is your oyster, whatever you can agree to, you can do! The key is to do something.
But my co-parent doesn’t want to build in contingency!
Sometimes your co-parent may not see the benefit in building in these types of contingencies. And sure, you probably aren’t with your co-parent because you have trouble agreeing, so that makes sense. The most important thing you can do is discuss the why this is so important. At the end of the day people tend to have similar motivations.
I’d like to think you are both motivated by what is best for your child. The best thing for your child is clearly predictability. It can be really stressful for kids to not know if they are going to move when mom or dad moves, how often they are going to see their parent, or when they are going to even see their parent again. It is stressful for kids when their parents are duking it out it in court. It is EVEN stressful for kids when they simply know that their parents are stressed! Did you know that there is research showing that a parent’s stress level can affect a child’s very makeup! A parent being too stressed can result in a child being put at risk of developing mood disorders, addiction, and even disorders like ADHD and autism.[i] Is there something that stresses a parent out more than a custody battle (short of their kid dying or being grievously injured), I submit to you there is not. So, I’d start by appealing to your co-parent about what is in the best interest of your child.
If that doesn’t work, appeal to their pocketbook! It is expensive to go back to court! Even if you go without an attorney you have to pay court fees. These fees can vary greatly. In Virginia you might only pay $25, but in Cuyahoga County Ohio, it’s $200 just to file (Filing fees are often different in different counties)! But, of course, many people do hire attorneys and these cases can cost thousands. For us, when we modified our parenting plan (back before we practiced family law), we paid $8,000 to amend a parenting plan and we actually agreed on everything! I suggest you save your $8,000 and buy a hot tub. Hot tubs are so much better than lawyers. (And yes, the military WILL move your hot tub!)
What about Child Support:
A change in parenting plan most likely means there is going to be a change in child support payments. If you share 50/50 custody, your child support isn’t going to be the same as in a 20/80 (or any other ratio) arrangement. And of course, what is a fair child support payment in the future might be hard to predict at the time of your parenting plan creation. People get married, have more kids, get raises, change jobs, move to more or less expensive locations, etc. So, how do you account for this? One thing you could do is agree when child support will be adjusted (for example anytime a move occurs) and what formula will be used to adjust the support. Can this stop your co-parent from going back to court to ask for child support at a different time or based on a different calculation, nope, but hopefully your preparation plans to save you both stress, money, and time. Of course, as we discussed above anytime money comes into the fold it can get complicated and people can get mad really fast, but hopefully dealing with these issues at the head will help your family keep peace.
Other things to consider building in:
The gold standard is just plain having time with your kids, but as we don’t always live in a gold standard world, so what other things should you consider when faced with a chance that a parent might live far from their child and have less frequent face-to-face interaction? These clauses can be used when a parent has less than 50/50 custody, when they deploy or go on short tour, or anytime you decide to write it in!
Video Chats: You can write in clauses requiring that the custodial parent have a device for video chats and (for an age-appropriate child) that the custodial parent facilitates these conversations on a certain schedule.
Extended Family: Just because a parent lives far from the kids that doesn’t mean that a whole family does. Perhaps step-parents, aunts, uncles, or grandparents are still close by. You can write clauses that allow them to exercise visitation.
Example 1: Mom PCS’s to Germany and dad has primary custody back in the states. Mom’s mom (maternal grandma) lives only two hours from the kids. You can write a clause that lets Grandma see the kids once a month.
Example 2: Dad goes on an unaccompanied short-tour to Korea. Stepmom is still at home. You can write a parenting plan that says Stepmom can exercise all of dad’s visitation time.
How to Transport the Kids: You may want to build in how the kids are going to travel, by plane, train, or automobile, and who pays for that transportation. In each situation described above, you want to say how kids get from point A to point B. You can always agree to change it, but it is best to build in a default. Your agreement should say: “If we live within X number of hours we will meet at a midpoint, but if we live farther than X hours, the kids will fly”, as just one example. Then you also have to say who pays for the flight and the unaccompanied minor fees. These expenses can add up quick. Some states have rules about who pays these expenses that you can fall back on, but its best to write it in! What happens when your co-parent says “sure you can have your custody time, but you have to pick the kid up at my house” and you live across the country! You might think “that won’t happen!” but it did literally happen to us!
Major Life Events Clause: You may want to consider building in a clause that says you automatically get a period of custody when certain major life events happen. This might be the death, illness, or marriage a close relative, a parent’s retirement, the birth of a sibling etc. It helps to have a clause that says that even if it isn’t your parenting time, you get the kid no questions asked for a certain number of days. This clause is good because it can work both ways. As always, remember to build in who pays. It’s likely going to be the parent utilizing the clause footing the bill.
In conclusion, if you or your co-parent is in the military, you don’t have to let military moves and changes blindside and upend your life. With a little forethought and good planning, you can add some predictability, save money, reduce stress, and, always our goal, AVOID COURT and get yourself a hot tub. As always "a failure to plan is a plan to fail."
[i] Code, David; Kids Pick Up On Everything: How Parental Stress Is Toxic To Kids (2011).
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