Marriage of E.U. and J.E. – Military and Child Custody in California

Marriage of E.U. and J.E. – Military and Child Custody in California

Child custody cases can be stressful. Add military and child custody, especially parents who are on active duty, and that stress can go to another level. The family law appellate decision of Marriage of E.U. and J.E. is an important one from the Fourth Appellate District, Division Three (which is the appellate district that hears Orange County appeals). The EU and JE case (using the initials of the parents) deals with military and child custody issues, specifically the parental rights of deployed service members.

The facts of the case are as follows…

The minor child was born in 2000. A year later, the parents divorced. The parents shared joint custody which provided that the child was to attend the Oceanside school near father’s home and father would have primary custody of the child. The parental arrangements were formalized in a written order in July 2006, reaffirmed in 2007 after the trial court found that being in the child’s best interest

The 2006 order contemplated mother or father being called to active duty and provided that if one of the parents was deployed, the other must assume primary responsibility, with a return to established parenting plan when deployment was over.

This is not uncommon in military and child custody cases.

In July 2009, the father was deployed to Afghanistan.  From August 2009 through February 2012, the parties filed various orders to show cause and requests for enrolling the child in a different school other than Oceanside and for the reinstatement of the July 2006 order, giving primary physical custody back to the father.  Mother resisted the reinstatement of the 2006 order by arguing that returning physical custody to the father would interrupt the continuity and stability that the child had become accustomed to over the course of the past few years.

This is also common in military and child custody cases. Parents who are deployed for several years often face these challenges from the other parent upon their return

As a result, in July 2011, the Court ordered an Evidence Code Section 730 child custody evaluation.  Judge McCartin, an experienced and knowledgable family law judge with whom our law firm’s lawyers are familiar, made it clear that there would be no reversion to the prejudgment status until the court reviewed the evaluator’s report.  Judge McCartin commented, “I feel bad because this is going to delay if we do a 730.”

Judge McCartin also commented the father bore some responsibility for the delay by not giving the court his deployment information when it was requested in October 2010.

The 730 report was completed in January of 2012.   The report concluded that it was not in the child’s best interest to revert the custody arrangements to the 2006 status because the child was six years older and had become used to a stability and continuing of being primarily in the mother’s care

Father appealed.  The appellate attorney who represented the father is attorney, Jeff Doeringer, a colleague in the family law community.

Father argued that Family Code section 3047 is intended to protect the parental rights of deployed service members and to promote quick resolution of custody situations involving deployed parents.

Father was right in making this argument. California law in military and child custody cases are designed to protect those who are called to active duty and return from it.

Importantly, the father argued that Section 3047 presumes that a service member returning from military service should return to the pre-deployment custody arrangements, unless the court determines that is not in the child’s best interest.

The Court of Appeal agreed with the father and found that the trial court erred by not reinstating the pre-deployment custody order which specifically provided that custody should be reinstated after father’s return from the military service and also by failing to provide the “fair, efficient, and expeditious process to resolve the child custody and visitation issue” that Section 3047 intended.

The Court of Appeal, by relying on the legislative intent and case law, concluded that the directive of the 2006 custody order should have been reinstated unless the mother was able to prove that:

  1. The child’s young age at the time of the deployment showed that a transitional time period was needed to ease the child into the prior arrangement and
  2. Service member suffers from mental or physical abilities that prevents them from ability to parent.

The Court of Appeal further found that the mother had not met her burden and the child should have been returned to the father at that point in time.   The Court of Appeal found that the trial court erred by failing to reinstate the 2006 order and by ordering the 730 evaluation.

Cases like this set and confirm important precedent.  With the deployments of service members to Afghanistan and other locations, the Court of Appeal’s decision does provide clear direction for those entangled in custody disputes.

Do you have a case that involves the military and child custody issues?

Does your case involve your military deployment or that of the other parent? Our child custody attorneys are ready to help you achieve a fair result that is consistent with your child’s best interest. Contact our law firm today for an affordable initial consultation.

About the Author

B. Robert Farzad

B. Robert Farzad is the president of Farzad Family Law, APC. Mr. Farzad is actively involved in the firm's divorce and parentage ca...
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