Every family is different and needs to think about different things. Some things to think about are:

• Do you have a court order or agreement that would cause a conflict between the rights of the non-custodial parent and your desired arrangement?
• What does the child want?
• How long do you think you will be away?
• How long do you think you will be deployed and/or called to active duty?
• What kind of support does the child need?

To have custody means to be in charge of someone. There are two kinds of custody: physical and legal. The same person often has physical and legal custody – but not always. Physical custody is when an adult is responsible for a child and takes care of the child. Usually the child lives with this adult. Legal custody is when an adult has the responsibility of making important decisions – such as medical, educational or religious decisions – about the life of a child.

There are two kinds of guardianship: guardianship of a person and guardianship of property. Guardianship of a person, is when an adult takes care of someone who is unable to take care of him or herself. The person is usually a child. A guardian is responsible for the child, cares for the child, and makes decisions about the everyday life of the child. Guardians have legal custody over a child. Guardians usually also have physical custody of the child.

In New York State, there are very few differences between custody and guardianship. However, in other states, there are big differences between the two. If the child will live in a state other than New York with your family member, you should find out about the laws in the state where they will live. This will help you decide whether another family member should petition for custody or guardianship of the child.

For more information on custody cases, please see the LIFT guide, “Custody and Visitation.” For more information on the rights of relatives in family court, including around custody and guardianship, please see the LIFT guide, “Rights of Relatives in Family Court.”

When a judge is deciding a custody case between a parent and someone who is not a parent, different factors will be considered. First, the judge will decide whether there are extraordinary circumstances. Examples of some extraordinary circumstances are: when a court has determined that there has been abuse or neglect; the child has been harmed by domestic violence; when there is drug abuse in the home; or when a parent voluntarily places a child in the grandparents’ home for at least two continuous years and the grandparents assume care and control of that child. It might also mean that the parent is incarcerated and unable to care for the child.

If there are extraordinary circumstances, the judge will decide what is in the best interests of the child. The judge will look at many things when figuring this out. The case will not be decided based on who loves the child more or who has more money. The judge does not favor a mother over a father, even if the case involves a young child. The judge will look at who has been the main person taking care of the child up until now.

You can file a motion to show cause in the borough or county where the child has lived for the last six months, or where the original order was made, if you are trying to modify that order. A motion is an application to appear before the judge to ask the court to make a specific decision. A motion to show cause can be filed when you must see a judge quickly due to an emergency or for some other reason that does not allow you the time to wait. The judge will decide whether or not to accept the application.

The Department of Defense (DOD) requires a single parent with sole custody who enlists in any branch of the Armed Forces to complete a Family Care Plan with his or her Commanding Officer. This applies whether the parent is sent to serve for an extended period of time, in training, deployment or on a remote assignment. The Family Care Plan appoints short-term care providers, long-term care providers, and care provision details for family members who are unable to care for themselves in your absence. This is a less permanent option than a court order for custody or guardianship. Under DOD policy, a Family Care Plan is required for all single member parents who have custody of their children (for the Navy this can include shared custody if the parent is not married to the other parent) and military couples with dependents. A Family Care Plan is required if family circumstances or other personal status of a service member changes such that the service member becomes solely responsible for the logistical (housing, food, clothing, transportation), medical, or financial support of another person.

A Family Care Plan is evidence of your intention to care for your family in the best way you think possible. A Family Court judge can take these arrangements into consideration when determining the best interests of your child. However, the Family Care Plan is only one factor that the judge can use. The Family Care Plan may not be enforceable if it violates the rights of a parent, conflicts with an existing agreement or court order, or the judge finds that it fails to provide for the best interest of the child.

A designation of parental relationship is when a parent chooses someone over the age of 18 to temporarily make some medical and school related decisions for their child or children. It does not authorize the person to do anything else.

The person chosen is then thought of as being in “parental relation” with the child and that person is called the “designee”. This designation can be granted for up to one month or up to six months. The designation is not the same as having legal custody. It is much more limited, meaning the person cannot make all of the same decisions. It also lasts for only a short period of time.

The designation can be revoked by either of the following:

• If the parent no longer wants the designation they can tell the person who they designated or inform the designee in writing.
• The parent can tell or write a letter to the school or health care provider to whom the letter of designation is presented that they no longer wish to have a designee.
• If the parent makes a new designation, the previous letter will be revoked.

Samples of these letters can be found on the New York State Kinship Navigator website.

A standby guardian is a person who agrees to act as a guardian for a child in cases where the parent or caretaker of the child is suffering from a chronic or potentially fatal illness or is otherwise unable to care for the child.

If the custodial parent or caregiver dies while a service member is deployed and there is no standby guardian, the service member will be notified by the Red Cross about the death. The unit commander then has the discretion to grant you an emergency leave. Emergency leave is normally granted in these situations. Emergency leave is not granted to care for children when the custodial parent is ill, unless you are the only one that can resolve issues of child care. The initial period of emergency leave is 30 days, but an extension can be granted by the unit commander for up to 60 days. Emergency leave days are counted against you.

If you decide to seek custody of the children, you will have to immediately go to the family court of the children’s jurisdiction. This will be the court in the borough where the children have been living for the past six months. Due to the urgency of the situation, you may file a motion to show cause (see the section "Is there a way to speed up the process if I am about to be deployed") along with your custody petition to expedite the matter. It is recommended that you bring any type of documentation that would support your motion to show cause, such as your leave authorization form. Again, custody will be granted if the judge feels it is in the best interest of the children. Because in these situations, you will still be required to return to your unit deployed overseas, you will have to arrange for care of the children until your return.

Under the Service Members Civil Relief Act (SCRA), you have a right to be notified before any legal action is taken against you. Notice is given so that you will have time to prepare for your court date, get a lawyer, or request a stay. A stay is when the Family Court delays making a final decision for a short time.

Sometimes, however, a court may not be able to give you notice of a court case because your military service makes it difficult or impossible for the court to locate you. In that case, the court may automatically grant a stay of at least 90 days if the court decides that your presence is necessary to defend yourself. Under the SCRA, you will also be appointed a lawyer who is responsible for taking action in your absence.

Yes. A custody order can be modified based on your military service, but only if there is clear and convincing evidence that it would be in your child’s best interest and only if the court has followed the notice procedures stated in the Service Members Civil Relief Act. “Clear and convincing” is a legal standard used to explain how much the judge must be convinced that something is true or necessary.

Yes. You can file an application for a telephonic hearing with the court that is hearing the case. A telephonic hearing is when one or both of the parties to a case are allowed to testify or appear using the telephone rather than in person.

To ask for a telephonic hearing, you make a written request to your judge. To do this, you must fill out a form. The form is called “Electronic Testimony Application and Waiver of Physical Presence.” On the form, you must explain why you are asking for the telephonic hearing. Your request must be approved by the judge hearing your case.

The form can be downloaded from the New York State Courts website. You can also get the form by contacting the judge’s Part (courtroom) to ask for the form. In some courthouses, you can get the form from the petition room or record room. The same form can be used to request permission to testify by audio-visual or other electronic means.

While your deployment does not necessarily work against you, the judge can consider the length and frequency of your time away, as well as the possibility of you being deployed in the future, when considering the best interests of your child. This is because courts attempt to make decisions that create the most stable home for your child.

The Department of Defense has a website called MilitaryINSTALLATIONS, where you can search for military installation and state resources for you and your family, including the nearest Legal Assistance Office.