Worried that your military deployment could be grounds for losing custody? A recent case (decision filed 8-15-13) upheld California Family Code §3047(a), which states that a party’s absence is not, by itself, sufficient to justify a modification of a custody or visitation order if the reason for the absence is the party’s activation to military duty, mobilization or deployment out of state.

The short story: A dad, Patrick S. II, lost contact with his son, Patrick S. III after dad and mom divorced; mom took junior and disappeared. For more than a decade, dad faithfully paid child support and tried to find his son, but mom was successful in evading him and his investigators.

In 2012, mom was involuntarily hospitalized for schizophrenia and other mental health issues. Junior became a ward of the Juvenile Court. Dad asked to be the custodial parent, but the Court denied his request finding that, pursuant to Welfare and Institutions Code §361.2(a), such would be detrimental to the child. Factors cited included “[Child’s] emotional needs, his lack of relationship with his father, the father’s lack of insight into [child’s] needs for therapy, support and socialization and the Agency’s inability to provide ongoing supervision constitute substantial evidence of detriment.” The Juvenile Court also expressed concern about dad’s continued military service and chance of deployment.

Dad appealed the decision. He argued that the Court had a high bar to meet when determining detriment. The Appellate Court agreed:

“Section 361.2, subdivision (a) evinces the legislative preference for placement with the noncustodial parent when safe for the child. (In re Austin P. (2004) 118Cal.App.4th 1124, 1132.) It states: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests cust ody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) 11 The juvenile court must make the detriment finding by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426; In re Isayah C. (2004) 118 Cal.App.4th 684, 700.)”

The Appellate Court went on to say, “The record leaves no doubt that Patrick is a competent, caring and stable parent. He was dedicated to serving his family, his community and his country,” and noted, “We are also concerned about the court’s reliance on Patrick’s scheduled deployments with the Navy as a factor in determining detriment.”

The Appellate Court remanded the case back to the Juvenile Court “with directions to hold a new dispositional hearing on the issue of placement under section 361.2, subdivision (a).”


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Written by Gideon Marcus