I’m in the Military–Can I Get Child Custody in Massachusetts?

Thank you for your service! As you know, serving in the military comes with unique challenges and sacrifices, especially when it comes to family life. This gets even more complicated when parents go through a divorce or separation.  

One common question military parents have during a divorce or child custody dispute is whether he or she can get custody of the child because of military service. Here is what military parents in Massachusetts need to know about child custody, what courts consider, and practical tips for protecting your parental rights while serving our country.

Understanding Child Custody In Massachusetts

In Massachusetts, child custody is divided into two main types: legal and physical custody.

Legal Custody: gives a parent the authority to make major decisions about a child’s upbringing, including education, medical care, mental health treatment, religious practices, and other major aspects of the child’s development and well-being. 

Physical Custody: determines where a child lives and who is responsible for day-to-day care and supervision.

For both legal and physical custody, parents can be awarded shared custody or sole custody. Shared legal custody means that both parents share the responsibility of making important decisions about the child’s welfare. Sole legal custody gives one parent the exclusive authority to make major decisions about the child’s life.

Shared physical custody means the child divides time between both parents’ homes, ensuring that each parent remains regularly and actively involved in the child’s daily life. 

Sole physical custody means the child primarily resides with one parent, while the other parent typically has scheduled parenting time, unless the court determines that visitation would not be in the child’s best interest.

How Custody Is Decided

When deciding custody, the court’s main priority is the child’s best interests, not just the parents’ wishes. Several important factors come into play, such as: 

• The child’s emotional and physical health
• School attendance and academic progress
• Involvement in extracurricular and community activities
• Relationships with both parents and extended family
• History of neglect, abuse, or substance misuse
• Which parent has been the primary caregiver

If the child is mature and old enough, the court may consider their preferences, though it will not base its decision solely on them.

Laws Protecting the Rights of Massachusetts Military Moms and Dads 

Family law matters are state matters, meaning that each state has its own policies and procedures for matters involving child custody, divorce, etc. However, a federal law called the Servicemembers Civil Relief Act (SCRA) ensures that military members are protected in these matters.

The SCRA provides essential legal and financial protections for military members to prevent their rights from being compromised due to active duty or uniformed service. Covering all civil actions, including family law cases like child custody and support, the SCRA ensures that courts cannot issue orders without giving the servicemember a fair chance to participate, even if they are unavailable due to military duties. It allows servicemembers to request a stay of court proceedings when service interferes with their ability to attend. The law applies to active duty members of all military branches, reservists on active duty, National Guard members mobilized federally for over 30 days, and certain commissioned officers. 

In many states, the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) has been adopted. The Act makes it clear that deployment cannot be used as a reason to deny custody. Massachusetts is not one of the states that has formally adopted it. However, courts there often use their guidelines to find practical solutions in military custody cases. While judges do consider how military service may affect the child’s best interests, courts favor arrangements that keep both parents involved in the child’s life unless strong reasons suggest otherwise.

What If I Am Deployed?

When a parent is deployed, family courts typically prioritize the child’s need for stability and continuity of care. In most cases, this means awarding temporary physical custody to the non-deploying parent for the duration of the deployment. This temporary shift ensures that the child remains in a familiar environment with consistent caregiving, minimizing disruption to their routine. 

Once the deployment ends, the custody arrangement generally reverts to the original order. The returning parent can resume their custodial rights as previously outlined. However, if significant changes have occurred during the deployment, such as a shift in the child’s emotional needs, a change in school or residence, or concerns about the returning parent’s ability to provide care, the court may consider a more permanent modification.

What If I Need or Want to Relocate?

Sometimes, members of the military may need to relocate, or an opportunity may arise that requires them to move. If you are stationed in a different state or country and want to move the child with you, you cannot simply do so. The other parent will need to consent, or you will need a court order.

If the other parent does not consent, you will need to file a petition with the court. For parents with primary custody, Massachusetts courts use the Real Advantage Test, also known as the “Yannas Test.” This test is based on the idea that a child’s well-being is often closely connected to the primary custodial parent. If the parent seeking to relocate outside Massachusetts can show that the move offers a real and significant benefit for the child, the court may approve the relocation.

Contact an Experienced Massachusetts Child Custody Attorney

If you are an active-duty or retired military service member seeking child custody, it is important to work with an attorney who understands the unique challenges military families face. Issues like deployments, relocations, and service-related schedules can complicate custody arrangements, but they should not prevent you from maintaining a strong and meaningful relationship with your child. An experienced child custody attorney in Massachusetts can help you navigate the legal process, protect your parental rights, and advocate for a custody plan that reflects your commitment as both a parent and a service member.