Deployed ServiceMember Protection Laws

Parents who are members of the United States Armed Forces can face unique challenges when it comes to parenting, especially in the case of divorce or never married parents who have separated.  When these service members are ordered to deploy, obviously it substantially affects their ability to parent their children during their deployment. All 50 states have these Deployed Serviceperson’s Protection Laws to protect parents who are service members and Missouri is no different. Missouri's servicemember protection law protects service members by preventing a parent’s absence, relocation, or failure to comply with a custody order from being used as the sole justification to permanently modify a child custody or visitation agreement if the cause is out-of-state military deployment.

                  Missouri Revised Statute § 452.412 is titled “Military service of parent not to be a basis for modification of a visitation or custody order—limitations on issuance of certain court orders.”  The primary function of the law is to state that any judgment, decree or modification regarding child custody or visitation during a parent’s out-of-state military deployment, shall be only temporary and should not exceed the length of time of the deployment. Further, when the parent returns from out-of-state military deployment, that parent must be allowed a hearing for the child custody or visitation prior to a permanent order being made by the court.

                  A case related to this Missouri law was recently decided by the Western District of the Missouri Court of Appeals. In the case, the mother and father divorced in 2020 with 3 children. The parenting plan in the judgment of dissolution dictated that because the mother lived in a small town 90 miles from Kansas City, that the children would stay with the father and attend school in Kearney during the week, and visit their mother on the weekends. Because the father was a full-time career member of the National Guard, the parenting plan stated that if the father was deployed, the children would live with the mother during the deployment and then return to the father upon completion of his deployment.

Subsequently, the father applied for and received a voluntary transfer within the National Guard to Virgina, an assignment that would last for two years. The father then filed a motion to modify the custody agreement which illustrated his intention to take the children with him to Virginia. In response, the mother filed a countermotion asking the court to order the children to remain with her in Missouri during the father’s two-year assignment. The court ruled that the best interests of the children would be met if the children stayed with their mother in Missouri.  The father appealed the court’s ruling, arguing that RSMo 452.412 prevented the court from making a permanent custody order because the law only allows temporary orders modifying child custody arrangements during a servicemember parent’s deployment.

                  The appellate court made its ruling on the appeal in two separate directions. First, because the father never raised the issue of the Deployed Servicepersons Protection Act in the original case before appeal, the issue was not preserved and thus could not be brought up on appeal. Under the law, you can only appeal issues that were brought up in the original case, so if you didn’t make the argument in the initial case you can’t make the argument in the appeal.

                  Second, the court found that the father’s assignment was not a deployment because he applied for the position and accepted it voluntarily. Indeed, the transcripts from the case make no mention of the word “deployment” and neither do any of the father’s pleadings in the case prior to the appeal. The court found that it was unclear whether the father’s assignment constituted a deployment, and that the father bore the burden of proving he was subject to the protections of the statute, but failed to offer any evidence to this extent. In denying the father’s appeal, the court went on to state that the father has the ability to seek modification of the latest custody judgment once his assignment is finished and he returns to Missouri.

                  While members of the armed forces are afforded certain protections when it comes to family law, these protections are limited. The preceding case shows that protection is only offered in the specific manner it is stipulated in the law.

                  Attorney Robert Davis at the Men’s Center for Domestic Resolution represents men in divorces and other family law matters.  The Men’s Center for Domestic Resolution is Kansas City’s family law firm designed exclusively for men to protect father’s rights.