Staff Sgt. Roger Newton holds his 4-month-old daughter Laila Newton for the first time as he and 90 other Ohio National Guard soldiers return from their deployment to Afghanistan to Rickenbacker Airport in Columbus on Oct. 3, 2012. Newton's son, Roger Newton III, was born during his first deployment four years ago. (Dispatch photo by Adam Cairns)

by David J. Pigott, Esq.

dave@hamptonpigott.com

You’re a member of the Colorado National Guard.[1]  You always knew it was a possibility, and now it’s happened: you’re deploying.  You immediately think of your children and the parenting plan you and your ex-spouse agreed to only a few years ago.  “We didn’t consider this,” you say to yourself.  “What do I do now?”  Before you can come up with an answer to that question, more questions enter your mind:

“Will my ex-spouse get my kids the whole time I’m gone?”

“What about my new spouse?”

“How do I see my kids before I leave if it isn’t my normal parenting time?”

“Can I see them on leave?”

“Will they be able to Skype me?”

“What if the person watching them doesn’t let them answer the phone when I call?”

“Does this mean I have to pay more child support?”

On June 30, 2013, these questions would have been harder to answer in the State of Colorado; but, with the enactment of the Uniform Deployed Parents Custody and Visitation Act (UDPCVA), the Colorado Legislature helped us out.  If you’re a divorced parent and you’re deploying, here’s what you need to know:

First, you have a duty to notify anyone with whom you currently share custody of your pending deployment within twelve days of receiving orders.[2]  Then, as long as you didn’t already come up with a plan for deployments when you made your current Separation Agreement, you’re going to get a new (temporary) parenting plan, and that plan will remain in effect until the end of your post-deployment leave.  This plan is temporary, and once your post-deployment leave is over, you’ll go back to the terms of your original Separation Agreement and Parenting Plan.

Second, the parties develop a proposed parenting plan for the deployment.  The law sets forth some requirements for that plan.  It must:

  • Be in writing;
  • Be signed by both parties (and any non-parent to whom custody is granted);
  • Identify destination, duration, and conditions of the deployment;
  • Specify the allocation of caretaking authority among the deploying parent, the other parent, and any nonparent;
  • Specify any decision making authority that accompanies any grant of caretaking authority;
  • Specify any grant of limited contact to a nonparent;
  • Provide a means for resolving disputes with nonparents should any dispute arise;
  • Specify frequency, duration, and means, including electronic means, by which the deploying parent will have contact with the child, any role to be played by the other parent in facilitating the contact, and the allocation of any costs of contact;
  • Specify contact between the deploying parent and the child during the time the deploying parent is on leave or otherwise available;
  • Acknowledge that child support cannot be modified by the agreement alone (it requires a court order);
  • Provide for termination after return from deployment; and
  • Specify who will file the agreement with the Court.

Third, once the plan is submitted to the Court, the Court will make the plan an enforceable order of the Court, and either party, including a non-parent with caretaking authority under the plan, may go to Court in order to enforce the plan and any time prior to the termination of the plan.

Fourth, the parties can always modify with mutual consent, provided they reduce the modification to writing, sign it, and submit it.  A non-parent must also sign the modification if the modification grants them additional authority.  A non-parent need not sign a modification that reduces their authority.

Fifth, if the deploying parent is a child’s sole caretaker, the deploying parent may delegate caretaking authority to a nonparent by using a power of attorney.   This grant of power must be filed with the Court in order to be effective.

Finally, if parties cannot agree on a plan, the Court can (and will) create one for them, although even this plan is temporary.

You’re probably wondering how, exactly, this all works.  Either party can move for the imposition of a deployment parenting plan any time after notice of deployment.  Either party can request an expedited hearing, and the law allows for either party to appear and testify electronically (unless court finds good cause for personal appearance).

Absent an agreement by the parties to modify or terminate the agreement, the plan remains in effect until 35 days following the return of the deployed party.  If any agreement was filed with the Court, an agreement to terminate must also be filed within a “reasonable time.”

Of course, there are many details of the new law not covered here, and the Law Firm of Hampton & Pigott would be happy to help you navigate these new waters.  We offer special rates for members of the Colorado National Guard.

David J. Pigott, Esq. is the managing partner of The Law Firm of Hampton & Pigott.  He is also an attorney with the Colorado National Guard.  Hampton & Pigott is a full service law firm based in Broomfied, Colorado.

[1] Or, a member of the United States Armed Forces subject to the jurisdiction of a Colorado Domestic Relations Court.

[2] Exceptions can be made for operational security or similar reasons.