Prescott, AZ asked in Child Custody, Family Law and Military Law for Arizona

Q: Would my husband and I be able to get/keep custody of his daughter if he enlists in the military?

My husband wants to enlist in the military, but he doesn’t want to lose custody of his 2yr old daughter. Right now he and his ex haven’t settled any sort of custody agreement in court, it’s all been verbal agreements. We currently are her primary household, and have been for over a year now. We know if he doesn’t enlist we have a really good chance at getting primary custody of his daughter, but the military would complicate that greatly.

2 Lawyer Answers
Sabra M. Janko
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  • Divorce Lawyer
  • Colorado Springs, CO

A: Courts determine who should have primary custody of a child by applying a number of best interests factors. The fact that you and he have been caring for the child for a year weighs in your favor. There is no clearcut answer as to whether military service impacts a child custody analysis. It depends on the individual case and what each of you can offer to the child as a parent proposing primary custody in areas such as education, contact with the other parent, contact with extended family, etc.

Stephen M Vincent
Stephen M Vincent
  • Divorce Lawyer
  • Scottsdale, AZ
  • Licensed in Arizona

A: You should consult with an attorney because that's a complicated question.

Arizona is generally a 50-50 state, and Arizona generally only goes away from 50-50 if there's some sort of safety concern with one of the parents or it's not logistically possible to do equal parenting time. If he is away in the military, you do not necessarily step into his shoes, as Courts are going to prioritize time with a parent over a step-parent. But if there are safety concerns with Mother, then that may be a different story.

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