Ask a Divorce Lawyer: Do placement and custody rights automatically transfer to my ex when I deploy?

Question: I have a step-child with my wife whose ex-husband is going to be deployed for 12-18 months with the Army. He was told by the JAG that his new wife holds the same visitation rights as he does and that she is entitled to the same visitation he would receive regardless of his deployment. 

My wife and her ex-husband have joint legal and physical custody with our daughter residing primarily at our residence. Both parents have first right of refusal per their decree of divorce and she has visitation with her father on his weekends. 

Does a step-parent have the ability to take on the responsibility of the biological parent in their absence, such as a long-term deployment? Does the biological parent have to keep to their visitation schedule if the other parent isn’t available?

Answer:

Depending on the wording of the first right of refusal in the divorce decree, the answer to your question may be in her divorce decree.  In most jurisdictions, his placement and custody rights do not automatically transfer to his wife when he deploys.  

He may be able to petition the Court to allow her to exercise his placement rights claiming that the visitation is in her best interest but again, that would not happen automatically. 

I have to preface that I do not practice in Idaho, therefore you should contact a domestic litigation attorney in your jurisdiction immediately.  Once he deploys, you may run into issues with the Servicemembers Civil Relief Act. 

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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One comment on “Ask a Divorce Lawyer: Do placement and custody rights automatically transfer to my ex when I deploy?

    I been married for 22 years have 4 kids one of them over 18 ,, my wife has 3 they they all over 18
    Things have not been ok but it’s getting worse yet and her 33 years old daughter makes it worse and she is in my life way too much and my wife is not helping …. I work hard I’m to keep the family
    I love my kids and I do most of the things for the. Cooking… Fields tried with school I go ….
    Even her own kids telling me to divorce her !!!!
    Now the question is
    Who can I or can I keep my kids if we divorced

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