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Ask the Lawyer: Know how deployment affects custody and child support

Q. I’m a divorced mother of two serving in the reserves. My divorce attorney says that I’ll probably lose custody of my children if I deploy or do anything else related to my military duties. Are there any laws that protect my custody rights?

A. Yes and no. The Servicemembers Civil Relief Act provides basic protection against default judgments and stays of court proceedings if you are unavailable to attend court because of your military service.

But child custody matters are controlled by state laws. More than 20 states provide additional protections for military members, such as not allowing a permanent child custody order to be issued while you are deployed. But that’s hardly all the states.

I have represented two clients in New York who lost custody because the “best interests of the child” were better served by a “more stable” home life than the one provided by the service member. The ultimate solution is for Congress to strengthen the SCRA to better protect our child custody rights when deployed.

Q. What happens if my ex tries to sue me for permanent custody while I’m deployed? And can he try to sue me for full custody upon my return?

A. Unfortunately, it is common to be sued for custody while deployed. You should work with your local judge advocate general and commander to get a stay of the proceedings under the SCRA until you return. If the stay is granted, your ex will not be able to sue you for full custody until you return. Try to work out these issues before you deploy. Always try to include a provision in the original custody order stating what will happen if you deploy and when you return.

Q. When I deploy, do I have to give all my housing allowance to the children’s father for their support, or will I pay a set amount of child support?

A. It depends on your service branch.

Soldiers must provide an amount equal to BAH Type II at the “with-dependent rate” unless a court order or written agreement stipulates a different amount. Exceptions exist at the unit commander’s discretion.

Air Force regs do not state a specific amount; commanders set it based on the individual situation in the absence of a court order or written agreement.

Marines must provide financial support to dependents based on a formula in the Corps’ Legal Administration Manual.

The Navy regs say a percentage of gross pay should be paid.

Q. Can my ex-husband garnish my pay for alimony?

A. Yes. Federal law limits garnishment to 50 percent or 60 percent of earnings, depending on how many former spouses and noncustodial children you have. The more former spouses, the higher the applicable percentage. These limits are relatively the same for child support, as well.

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Mathew B. Tully is an officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of the law firm Tully Rinckey PLLC. E-mail him at askthelawyer@militarytimes.com. This column is not intended as legal advice.