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WHAT MILITARY PARENTS NEED TO KNOW ABOUT MILITARY CHILD CUSTODY IN NEW YORK
BLUF: Military Child Custody questions can be complex and frustrating. But, military service does not disqualify you from custody in New York. Deployment cannot be used as the sole reason to deny custody. Courts must protect the child’s relationship with the military parent, and any changes made during deployment are temporary unless both parents agree otherwise.
If you’re balancing parenting with military service—Active Duty, Guard, or Reserve—New York law gives you specific protections, tools, and strategies to keep your parental rights intact. There are some basic rules to understand Military Child Custody questions in New York.
As a retired Lieutenant Colonel JAG who’s handled these cases for decades, I’ll tell you straight: The military lifestyle complicates custody, but it does not put you at a disadvantage—unless you fail to plan.
Will it be easy? Come on, you’re military, when has it ever been easy?
This guide covers everything you need to know and links out to deeper articles on each topic.
WHAT ARE MILITARY CHILD CUSTODY LAWS IN NEW YORK?
New York custody law revolves around one thing: the best interests of the child. Here’s a link to a general article on custody.
For military parents, that “best interests” test has special rules:
- Deployment cannot be used as a reason to permanently change custody. This is a statute which Albany passed 20 years ago when a judge did just that. Our community was outraged and Albany passed this law in about 90 days from that decision.
- Temporary changes can end automatically. But, let’s be realistic. You may have to go to court. I have had to go to court a few times to force the other parent to return the child.
- Courts must consider your service obligations. This one is a little tricky. I have a case where for the first 8 years of the child’s life, Dad had 5 deployments. Mom is claiming that she is the “de facto” parent, and changing custody would “up root” the child. This is a complex problem. And must be dealt with on a case by case basis.
- Courts must include communication provisions. The custodial parent must provide telephone/internet access.
These protections exist because New York understands what the military expects of you—you aren’t penalized for doing your duty.
DO MILITARY PARENTS GET 50/50 CUSTODY IN NEW YORK?
Short answer: Yes—military parents can get 50/50 custody in New York, but it requires smart planning.
Courts look at:
– Deployment tempo
– Drill and training obligations
– Family Care Plans
– Stability of your living situation
– Communication and co-parenting behavior
Active-duty parents with frequent deployments may struggle with strict 50/50, but Guard and Reserve members often succeed when plans anticipate activations.
The biggest challenge to Active Duty parents are of course, the PCS. If you are moved to a different state or even country, there will be significant challenges.
If you are the custodial parent you may have to show that the move won’t adversely affect the relationship with the non-custodial parent.
If you are the non-custodial parent, you will need to have a parental schedule which works for you and the child.
Is this difficult? Yes, it can be, but over the years I have come up with solutions which work.
For example, we use extended holiday schedules. The non-custodial parent may get the entire summer, every Christmas and/or every Spring Break.
Making it work is a commitment, but you’re military so you understand making hard situations work.
HOW DOES DEPLOYMENT AFFECT MILITARY CHILD CUSTODY IN NEW YORK?
As I mentioned above, an upstate judge who shall remain nameless made a very bad decision 20 years ago, taking away custody from a New York Guardswoman because she was in the Guard. Our community’s reaction was swift. Within 90 days, we got Albany to fix this ill-advised (I’m being lawyerly here. Image my army description of this decision.) by statute.
This New York law gives military parents strong protection when deployment or temporary duty affects their ability to care for their children. If a parent is activated, deployed, or temporarily assigned in a way that disrupts their role as a primary or joint caretaker, the court cannot permanently change custody based on that absence alone.
Instead, the court may only issue a temporary custody modification—and only if there is clear and convincing evidence that the change is in the child’s best interests. Whenever this happens, the judge must appoint an Attorney for the Child and must include, whenever feasible, ways for the deployed parent to maintain meaningful contact through video calls, email, phone, or other electronic communication.
When the service member returns, that return is automatically treated as a substantial change in circumstances, allowing either parent to ask the court to restore or adjust the previous custody arrangement based on the child’s best interests. These protections ensure deployment does not become a backdoor path to losing custody.
This statute does not apply to permanent duty station changes or PCS moves—only temporary military absences.
WHAT IS A FAMILY CARE PLAN AND WHY DOES IT MATTER?
A Family Care Plan is mandatory for certain service members and includes:
– Guardians
– Powers of attorney
– Financial arrangements
– Medical instructions
But, only if you are the custodial parent. This does not apply for non-custodial parents or married (not dual status) couples. I have seen some commanders not understand this and require a family care plan for non-custodial parents. Reference to the regulations and advising them to consult with JAG usually solves the problem.
Judges view an FCP as evidence of organization and responsibility.
TEMPORARY GUARDIANSHIP & PARENTAL DESIGNATION LETTERS
New York allows:
– Powers of Attorneys
– Temporary Guardianship (more robust authority). This would require most legal work, and a trip to the Family Court.
Both help during training, TDY, or deployment. The concern we have here is medical decisions. Only a parent can make medical decisions for a child. If the parent or parents are deployed, we need someone who can make quick medical decisions for the child in the case of an emergency.
Educational decisions are also important, but need not be an emergency.
How the SCRA Protects Military Parents
When you’re serving your country, the last thing you should worry about is losing your rights as a parent simply because you’re not able to walk into a courtroom. Congress understood that, which is why the Servicemembers Civil Relief Act — the SCRA — exists. New York has a similar statute, The Soldiers and Sailors Civil Relief Act.
Here’s what it means in real life:
First, if a custody case is happening while you’re deployed or on active duty, you can hit the pause button. The SCRA gives you an automatic 90-day delay so you’re not forced into a hearing you can’t attend.
BUT, you need to show that military service is in fact preventing you from participating. All New York courts are equipped for virtual court appearances. Merely being on orders will not get you out of appearing in court. I’ve had clients participating from the Z, the Sandbox, Europe and Turkey. If you are at a FOB with poor communications, or in the midst of a mission, then you will get a pass. However, you will need to a letter from your command or JAG that as to when you can participate.
I had one case many years ago, where the soldier was wheels up to Haiti (she was with the 82nd). He CO called the Judge and told her that the soldier would be available in 30 days. I had another case where the soldier was deployed to GTMO. We got a letter from the Navy JAG Captain stating that he could not leave until his orders were completed. He could participate in conferences, but no more than 1 hour.
Second, a court can’t take advantage of your absence. Before a judge can enter any kind of default decision against you, the law requires the court to appoint an attorney to protect your interests. No one gets to win a custody fight just because you’re serving.
Third, deployment itself cannot be held against you. The court is not allowed to make any permanent custody changes simply because you’re away on orders. Your service is not a strike against you — period.
And fourth, when you can’t be physically present, the SCRA supports your right to show up electronically. Courts regularly allow military parents to participate by phone or video, so you can still be heard even from across the world. As I said above Courts are equipped to hold virtual conferences.
Put simply:
The SCRA makes sure your military service doesn’t cost you your children. If anything, it levels the playing field so you can serve your country without sacrificing your role as a parent.
How Does a PCS Move Affect Custody in New York?
When the military hands you PCS orders, you don’t get to negotiate. You go where you’re sent. New York courts understand that, and they don’t treat a PCS like you suddenly deciding you want a “fresh start” in Arizona.
Instead, a PCS triggers New York’s relocation rules — the same set of guidelines (called the Tropea factors) that judges use any time a parent needs to move. And these rules are surprisingly practical.
A judge will look at things like:
- How the move affects your child’s relationship with each parent. Can the bond be preserved through longer visits, holidays, or virtual calls?
- What alternatives exist. Is there a realistic way to keep the child close to both parents without blowing up your career?
- Why the move is happening. In your case, the “why” is simple — the United States Army/Navy/Air Force says so.
- Whether the move actually benefits the child. Better schools, safer housing, Tricare benefits, and stable income all count.
The most important thing to know is this:
Courts do not treat PCS orders as optional or voluntary. They know you’re following orders, not making a lifestyle choice.
In plain English?
A PCS won’t automatically hurt your custody case — not if the move is truly military-mandated and you have a plan that keeps your child connected and supported. Keep in mind if you are the custodial parent, a PCS move could cost you custody. Prepare, plan and make sure your lawyer knows the military.
Parenting Plans for Military Families in New York
Military families don’t get the luxury of predictable schedules. One month you’re home for dinner every night, and the next you’re packing for training, drill weekends, or a deployment you didn’t see coming. That’s why a good parenting plan isn’t just helpful — it’s essential.
A strong parenting plan for a military parent does more than divide time; it anticipates the realities of service so your child stays connected, grounded, and supported no matter what the military throws at you.
Here’s what a solid plan usually builds in:
- Deployment triggers.
Your plan should spell out exactly what happens the moment deployment orders hit — who takes over primary time, what changes automatically, and how long those changes last. - Communication schedules.
Being far away doesn’t mean disappearing. Courts like to see scheduled video calls, phone calls, or other ways you stay involved, even from the other side of the world. - Make-up time when you return.
You shouldn’t lose parenting time forever just because the Army or Air Force needed you overseas. A good plan gives you the chance to rebuild time with your child once you’re back. - Drill weekend rules.
Guard and Reserve parents know the pain of “I can’t, I have drill.” Your plan should clearly explain how drill weekends affect exchanges so the other parent isn’t claiming you’re “skipping” time.
AND FOR GOD’S SAKE give your ex the drill schedule every September. I know, the schedule can change. I’ve been there. During my service, my wife worked Friday to Mondays. Except on drill weekends. When my schedule changed, we had to adjust fire.
If the schedule has changed, let your ex know ASAP. Also, make sure that your custodial agreement allows for adjustments and make up when this happens.
Too many times, I’ve seen the ex refuse makes up, claiming that the changed drill schedule is not an excuse. Yes, it is.
- Step-up schedules.
If your child is very young or you’re coming back from a long deployment, the plan can outline a gradual increase in parenting time to make the transition smoother. Judges do like this one. Me, personally, I don’t. I find that the custodial parent can use this as an excuse to limit access.
In short, a military-ready parenting plan isn’t just paperwork — it’s your safety net. It protects your child’s routine, your relationship, and your rights, even when the military changes your schedule without asking your opinion first.
Where Can Military Parents Get Legal Help in New York?
You don’t have to handle a custody case alone — especially not while juggling military duties. New York has a surprisingly strong network of resources for service members and veterans, and each one plays a different role depending on what you need.
Start with your installation’s Legal Assistance Office.
Every base has one, and they’re a great first stop. They can help you understand your rights, review documents, update your Family Care Plan, and walk you through the basics of New York custody law — all at no cost. They can’t represent you in court, but they can prepare you for what’s ahead.
I’m not hating on the other services, but the Army has the best legal assistance program. Even if you are in another branch, go to the Army JAG. The reason it is the best is that the Army has made legal assistance a priority (AR 27-3).
If you’re in or near New York City, then visit my good friends at the Fort Hamilton Legal Office. Alma and Rod are amazing. If you are around West Point. Mike is one of the best.
And if your situation is more complex — or your case is headed to court — you may want to work with private counsel who has real experience with military family law. Custody cases involving deployment, PCS orders, or reserve activation aren’t like typical civilian cases. An attorney who understands both the New York courts and military regulations can make an enormous difference.
I will be honest, a lot of really great divorce lawyers get a deer in the headlights look when confronted with a military client. But, the New York State Bar Association has a Veterans/Military Law Committee to help lawyers. I’ve the current co-chair (as of 2025) and I lecture a lot to lawyers about the military client.
Bottom line?
You’re not alone. Whether you’re Active Duty, Guard, Reserve, or a veteran, there are people and programs ready to back you up so you can focus on your family and your service.
If you have questions, you can always call me at (516) 352-2999. Military to Military, I always have time for servicemembers and their dependents.
