Changes to custody law affecting deployed service members

By Megan Norberg, Staff Attorney with Iowa Legal Aid

Beginning July 1, 2016 Iowa Code Chapter 598C provides a mechanism by which service member parents who are deployed may ask that a nonparent take over their parenting responsibility during their deployment. The nonparent must be an adult family member of the child or an adult with whom the child has a close and substantial relationship. The deployment must be more than 90 days but less than 18 months. The deployment must be one where family members cannot go with the service member.

What is the process?

First, the deploying parent must notify the other parent of the deployment within seven days of the deployment notice. Then, the parents may enter into a temporary agreement about the nonparent’s power and duties during the deployment. This agreement must be in writing and signed by both parents and the nonparent. The agreement must provide specific information about the deployment. The agreement must explain the powers and duties of the nonparent during the deployment. This agreement needs to be filed with the court if there is an existing child support or custody case. Instead of a court order, the parties may sign a power of attorney during the deployment. This power of attorney must be filed with the court.

If the parents do not agree about parenting during the deployment, then the court can decide the nonparent’s role. Either parent may file the motion in a pending custody case or child support case. If there is no pending case, then a new case may be filed. The court will then conduct an expedited hearing. Testimony by phone or video conference is allowed. The hearing will determine the power and duties of the nonparent during the deployment.

Whether the order is agreed to or entered by the court, the order is temporary. The temporary deployment order ends when the parties file an agreement to end the order or 60 days after the deploying parent gives notice of return.

What type of power and duties can a court grant a nonparent?

The nonparent may be granted “custodial responsibility”. This means the nonparent has the same power and duties related to child caretaking and decision making as the deploying parent had. The nonparent could be granted physical custody, legal custody and parenting time. The nonparent can have parenting time equal to what the deploying parent had. If there is a permanent custody order then the nonparent could have up to the same amount of time as that custody order gave the deploying parent. If there is no custody order then the court may give the nonparent the same amount of time the deploying parent usually spent with the child. This temporary agreement may also provide for electronic contact between the parent that is deployed and the child, contact between the child and a non parent and child support.

How does a court determine whether a nonparent should have parenting responsibility?

The court will look at the best interest of the child. The court must also make other determinations. First, the court must determine that granting the nonparent these powers allows the child to continue an important relationship. Second, the nonparent must be able to personally and financially support the child. Third, the nonparent must support the child’s relationship with both of the child’s parents. Finally, the court will make sure that the nonparent is a safe person for the child to live with. The nonparent may not be a sex offender, have a history of domestic violence and may not have a record of founded child or dependent abuse.

Iowa Legal Aid provides free legal assistance to low-income Iowans in all 99 counties with civil legal problems involving basic necessities and safety. Information about civil legal issues is available on Iowa Legal Aid’s websites, www.iowalegalaid.org and www.probono.net/iowa. Probono.net/iowa is a free, members-only site that provides a comprehensive collection of information on legal topics, upcoming events including continuing legal education opportunities, and resources on civil law practice for members of Iowa’s justice community.