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How state and federal laws and branch policies affect child custody, visitation and support for military families Military Parents in New Jersey 101: Rights and Responsibilities 1 Presented by: Family & Divorce Lawyers in New Jersey
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Military Parents in New Jersey 101: Child Custody, Parenting Rights & Responsibilities

Apr 15, 2017

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Page 1: Military Parents in New Jersey 101: Child Custody, Parenting Rights & Responsibilities

How state and federal laws and branch policies affect child custody, visitation and

support for military families

Military Parents in New Jersey 101: Rights and Responsibilities

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Presented by:

Family & Divorce Lawyers in New Jersey

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MILITARY PARENTS: DISCLAIMER

• This presentation contains general information and does not constitute legal advice.

• Be sure to direct specific questions about your own situation to an attorney.

• Weinberger Law Group is not affiliated with the United States Military.

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Sections

Military Parents in New Jersey: Rights and Responsibilities

1. Introduction and Common Procedural Issues.2. Child Custody and Parenting Time.3. Child Support.4. Military Benefits for Children.

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Military Parents in New JerseyIntroduction & Common Procedural Issues

Military Parents 101 1. Introduction.

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Introduction Laws and Procedures for Military Parents

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• Issues involving child custody and visitation or child support can be especially complicated for military families due to the interaction of family law with military regulations and policies.

• State courts make their own orders based on state law rather than enforcing military branch policies.

• Frequent moves sometimes result in confusion regarding which state (or sometimes even which country) is the appropriate authority for issuing and enforcing court orders.

• Certain laws provide special protections to military parents.

Military Parents 101 1.Introduction.

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Introduction Choosing the Right Court and Procedure

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• Depending on the circumstances, the appropriate state court may be in your state, the other parent’s state or the state with jurisdiction over the child.

• Jurisdiction gives a court authority to make decisions.

• Claims for custody, visitation or child support may be part of a divorce case or may be initiated as a separate “non-dissolution” procedure.

• In New Jersey, claims are filed in the Superior Court - Chancery Division - Family Part.

Military Parents 101 1. Introduction.

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State Court Procedures for Military ParentsJurisdiction

• Jurisdiction in child custody matters is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). N.J.S.A. 2A:34-53 et seq.

• Jurisdiction in child support matters and parentage matters is determined by the Uniform Interstate Family Support Act (UIFSA). N.J.S.A. 2A:4-30.65 et seq.

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Military Parents 101 1. Introduction.

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Jurisdiction for Child Custody and VisitationUCCJEA

A state can claim jurisdiction under any of the following circumstances:

• the state is, or was within the last six months, the child’s “home state”;

• it is in the best interests of the child for the state to have jurisdiction due to a “significant connection” with the state;

• the child is physically present in the state and has been either abandoned or is in need of emergency protection; or

• no other state has jurisdiction and it is in the child’s best interests for the state to exercise jurisdiction.

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Military Parents 101 1. Introduction.

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Jurisdiction for Child Custody and VisitationUCCJEA

• The original court generally retains authority unless the child and both

parents have moved out of the state or there is a mutual agreement to

transfer jurisdiction.

• Even if a child is a U.S. citizen, jurisdiction may belong to a foreign

country.

• New Jersey law states that if a child is living out of state on a temporary

modification order, New Jersey will retain home state jurisdiction.

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Military Parents 101 1. Introduction

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Jurisdiction for Parentage and Support Orders UIFSA

• The UIFSA addresses a court’s authority over the parent paying support (the “obligor”).

• The court must have personal jurisdiction over the obligor, either because:o The obligor resides in the state, or o The obligor has engaged in purposeful action as further

specified in the act, which created a reasonable expectation that the state court would gain authority.

• Note: the obligor can also voluntarily submit to jurisdiction

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Military Parents 101 1. Introduction.

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Orders from Other States or Foreign TribunalsUCCJEA and UIFSA

• Only one tribunal has exclusive and continuing jurisdiction.

• Other state courts recognize and enforce orders from the state with exclusive jurisdiction but will not modify such orders.

• When jurisdiction belongs to a foreign country, enforcement may depend on reciprocal agreements between states and countries.

• Without a reciprocal agreement, a state court can still decide that the law and procedures of the foreign country favor enforcement.

• If you have an international jurisdictional dispute, consult an attorney.

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Military Parents 101 1. Introduction.

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State Court ProceduresProviding Notice to the Other Parent

You must give the other parent a chance to respond by serving copies of papers according to the applicable rules. This could require:

• Mail service (regular and certified, return receipt request).

• Personal service off-post (sheriff’s office or a process server can serve papers according to state law).

• Personal service on post (contact the Commanding Officer or the Provost Marshall and follow instructions).

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Military Parents 101 1. Introduction.

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Notice to Parents Overseas

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Service overseas can be especially challenging. If you know that you or your child’s other parent may soon be deployed overseas, try to address any urgent situation before the deployment.

• Hague Convention Countries generally permit service by mail to a “central authority” in the host country.

• In non-Hague countries, the procedure will depend on the agreement between the host country and the U.S Military.

Military Parents 101 1. Introduction.

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The SCRA is a federal law extending various protections to servicemembers on active duty, including protection from default in civil suits.

Servicemembers Civil Relief Act (SCRA)

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The purpose is to allow military personnel to devote full attention to the defense of the nation.

Note: The timeframes for responses, answers, cross-motions, etc. may also be extended upon request of the servicemember.

Military Parents 101 1. Introduction.

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Stay of Proceedings under the SCRA

• A judge cannot enter a default against a servicemember unless the servicemember waives the protections of the SCRA or the court first appoints an attorney for the servicemember.

• If the attorney cannot contact the servicemember or the court finds that current military service or service within the past 90 days is affecting the servicemember’s ability to appear and present a defense, the court will stay the proceedings for at least 90 days.

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Military Parents 101 1. Introduction.

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Additional stays or stays after notice require an application including the following: A statement from the servicemember indicating:

- how military duties affect the ability to appear, and- a date the servicemember will be available.AND

• A statement from the commanding officer indicating: - that military duty prevents the appearance, and - that leave is not currently authorized.

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Military Parents 101 1. Introduction.

Note: Courts will routinely grant requests for telephonic appearances from servicemembers if they are unable to travel to NJ due to the fact that they are stationed out of the state.

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Opposing a Stay of Proceedings

• The servicemember is required to act in good faith and exercise due diligence in attempting to arrange an appearance in court.

• If the servicemember is exaggerating the difficulty involved in making an appearance, or the servicemember’s personal appearance is unnecessary, the other parent may oppose the stay of proceedings.

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Military Parents 101 1. Introduction.

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Military Policies and New Jersey LawChild Custody and Parenting Time

Military Parents 101 2. Child Custody & Parenting Time

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New Jersey Family Law Child Custody and Parenting Time

State law governs parenting orders and agreements in military divorce. (N.J.S.A. 9:2-4).

The overriding concern is the “best interests” of the children.

New Jersey favors “frequent and continuing contact” with both parents.

Parents are encouraged to make their own agreements. Parents can agree on any combination of physical and

legal custody that addresses a child’s best interests.

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Military Parents 101 2. Child Custody & Parenting Time

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Military Family Care Plans

• The U.S. military does not allow single parents to enlist. In most cases this includes parents with joint physical custody.

• Parents who separate during service may end up as single military parents and this triggers certain responsibilities.

• All single parents in the military, as well as military parents married to another military parent, must have a Family Care Plan (FCP) in place.

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Military Parents 101 2. Child Custody & Parenting Time

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Military Family Care Plans

• FCP’s cannot conflict with court orders, and a non-custodial parent can request a change in a court order that conflicts with an FCP designating another care provider.

• The court will consider an FCP, but will not enforce it if it violates the rights of a parent, or if the court finds that it is not in the best interests of the child.

• When forming your FCP, make sure your Commanding Officer is aware of the provisions of any existing court orders. Indeed, it is highly recommended that a servicemember provide their Commanding Officer with a copy of any and all court orders discussing the custody and care of the children (Judgment of Divorce, Settlement Agreements, Custody Agreements, etc.) and the same can be annexed to the FCP.

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Military Parents 101 2. Child Custody & Parenting Time

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Military Family Care Plans

• Servicemembers must notify commander, supervisor, or designated representative no later than 30 days (60 days for National Guard or Reserves) following an occurrence that creates single-parent or military couple with children status.

• Within 60 days (90 days for Guard or Reserves), the servicemember must submit an FCP.

• Active servicemembers who move from one military base to another have 60 days to find a short-term care provider within the new local area.

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Military Parents 101 2. Child Custody & Parenting Time

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Military Family Care Plans

Each branch has its own requirements, but all have three basic components:

• Designation of a short-term care provider, • Designation of a long-term care provider, and • Details regarding care provision.

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Military Parents 101 2. Child Custody & Parenting Time

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Family Care PlansShort-Term Care Provider

• A non-military person (or military spouse) who signs the family care plan.

• The provider must agree in writing to take over immediate full-time care of the servicemember's children at any time in the event that the servicemember is called to active duty or deployed without notice.

• The provider must live in the same local area as the servicemember.

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Military Parents 101 2. Child Custody & Parenting Time

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Family Care PlansLong-Term Care Provider

• A non-military person who signs the family care plan

• The provider must agree in writing to provide long-term care for the servicemembers children if the servicemember is deployed for a significant period, is selected for an unaccompanied overseas tour, or is assigned to a ship at sea.

• The long-term care provider does not have to live in the local area.

• The FCP must specify how care will be transferred from the short-term provider to the long-term provider, including specifying travel arrangements and financing for the transfer.

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Military Parents 101 2. Child Custody & Parenting Time

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Family Care Plans Additional Care Provisions

• Either the consent of any noncustodial parent not named as a caregiver, or an explanation for the lack of consent.

• Financial arrangements for short-term and long-term separations.

• Provisions for financial, medical and legal support to ensure security and continuity of care (eg., powers of attorney and allotments).

• Logistical arrangements and transportation expenses for any potential relocation of the caregiver or family members.

• Provisions for any necessary non-military escorts for infants, children, elderly or disabled adults during relocation.

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Military Parents 101 2. Child Custody & Parenting Time

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New Jersey Family Law Parenting During Service-Related Absences

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Special Considerations

o Deployments can be unpredictable and require difficult adjustments.

o Active duty can increase the risk of physical or psychological injuries.

o A New Jersey law enacted in 2013 addresses the need for special flexibility in child custody arrangements and parenting plans when one or both parents are in the service (N.J.S.A. 9:2-12.1).

Military Parents 101 2. Child Custody & Parenting Time

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Protection for servicemembers in New Jersey custody and parenting time matters:

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• New Jersey law prohibits permanent custody decisions while a parent is absent for 30 days or more due to deployment or treatment for a service-related health condition.

• Courts must wait at least 90 days after the parent’s return before entering permanent child custody orders or making permanent changes to any already existing custody and parenting time orders.

Timing of Orders

Military Parents 101 2. Child Custody & Parenting Time

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Protection for servicemembers in New Jersey custody and parenting time matters:

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Parents’ Responsibilities

• The departing parent must notify the other parent of the anticipated absence dates and location no later than the day before departure or the 10th day following receipt of official notice (whichever is earlier).

• To the extent feasible, the non-departing parent must facilitate electronic or telephone communication between the child and the absent parent.

Military Parents 101 2. Child Custody & Parenting Time

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Protection for servicemembers in New Jersey custody and parenting time matters:

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Changes are Temporary

• Temporary modifications must allow the departing parent to exercise parenting time during leave, and must expire automatically when the parent returns home.

• Original orders resume after the parent returns home unless the other parent can demonstrate that this is against the child’s best interests.

Military Parents 101 2. Child Custody & Parenting Time

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Protection for servicemembers in New Jersey custody and parenting time matters:

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Enhanced Flexibility

• A parent cannot base a request for a change in custody or parenting time on the other parent’s absence due to military service or treatment for a service-related health condition.

• Children do not automatically stay with the non-departing parent. The court will consider other options:

Military Parents 101 2. Child Custody & Parenting Time

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Flexible options for temporary changes in parenting orders during deployment or service-related treatment:

The child may stay with the other parent.

The child may accompany a deploying parent.

The absent parent may delegate parenting to a family member

with a close personal relationship to the child.

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Military Parents 101 2. Child Custody & Parenting Time

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Factors courts consider in determining appropriate modifications:

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Temporary modifications will be based on the best interests of the child after considering all relevant circumstances, including:

o Which parent has been the primary caretaker.

o What conditions the child would face in the deploying country (safety, childcare facilities, enrichment opportunities).

o What kind of arrangement the other parent or an alternate caregiver can provide for the child.

Military Parents 101 2. Child Custody & Parenting Time

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New Jersey Custody and Parenting Time Hearings: Expedited Dates and Presentation of Evidence

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• A parent facing an imminent deployment or treatment-related absence that would prevent appearance or full participation in an initial custody or parenting hearing, or a parenting evaluation, can request an expedited date before deployment without waiving rights to request a stay under the SCRA.

• If a parent is already out of the state, courts can take evidence and testimony by electronic means, such as telephone or internet conference.

Military Parents 101 2. Child Custody & Parenting Time

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Child Support PaymentsMilitary Policies and New Jersey Law

Military Parents 101 3. Child Support Payments.

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New Jersey Family LawPayment of Child Support

• Payment of child support support in New Jersey is governed by state statute (N.J.S.A. 2A:34-23).

• New Jersey Court Rules (5:6A and Appendix IX) impose additional specific guidelines.

• If you do not have a court order or legal agreement addressing payment of support, branch regulations or guidelines govern temporary support payments.

Note: While not all branches of the military have specific guidelines providing for support, a servicemember’s failure to support dependents is considered to be a serious infraction by all branches of the military and can result in disciplinary action for the servicemember.

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Military Parents 101 3. Child Support Payments.

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Military Branch Assistance Voluntary Support Allotments

If you are an active servicemember and wish to voluntarily acknowledge paternity and provide financial support for your child, your commander will assist you in:

• Obtaining the appropriate available housing/dependent allowance.

• Understanding what you need to do to complete a voluntary allotment for the child.

• Obtaining a military identification card for your child.

• Obtaining ordinary leave, consistent with military requirements, in order to marry your child’s mother.

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Military Parents 101 3. Child Support Payments.

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Family Support Allotments U.S. Navy Policy

• Support is payable at different percentages of gross pay

depending on whether there is a spouse only (one-third), a

child only (one-sixth), a spouse and one child (one-half), etc.

• For details see: MILPERSMAN (Navy Personnel Manual)

1754-030.

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Military Parents 101 3. Child Support Payments.

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Family Support Allotments: U.S. Marine Corps Policy

• Minimum support payments are based on the number of

dependents or, if higher, a percentage of the housing

allowance.

• For details see: Chapter 15: Marine Corps Legal

Administration Manual.

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Military Parents 101 3. Child Support Payments.

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Family Support Allotments U.S. Army Regulations

• Minimum support payments vary depending on living

arrangements and military or non-military status of the spouse.

• For details see: Army Regulation 608-99.

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Military Parents 101 3. Child Support Payments.

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Family Support Allotments U.S. Coast Guard Policy

• Minimum support is calculated as a percentage of base pay

according to number of dependents, also factoring in

differences in housing allowances with or without dependents.

• For details see: Coast Guard Discipline and Conduct Manual

(Section 2.E.3. Support Requirement in the Absence of a Court

Order).

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Military Parents 101 3. Child Support Payments.

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Family Support Allotments U.S. Air Force Policy

• The Air Force directive defers to state courts for calculations.

• Minimum support must be “adequate.”

• For details see: Air Force Instruction 36-2906.

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Military Parents 101 3. Child Support Payments.

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New Jersey Family Law Obtaining Enforceable Support Orders

• Voluntary support allocations under branch regulations are not enforceable in court without a child support order.

• If the father was not married to the biological mother at the child’s birth and paternity is an issue, this will need to be addressed first.

• Both parents can sign an acknowledgment of paternity—putting the father’s name on a birth certificate is not sufficient.

• If the mother does not want to sign, then the father may need to have genetic testing. The state child support agency can help with testing.

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Military Parents 101 3. Child Support Payments.

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New Jersey Family Law Establishing Paternity

Establishing paternity ensures that a child will have certain legal rights:o inheritance rights,o health coverage, o other benefits such as social security, pensions, and veteran’s

benefits.

Establishing paternity is the basis for custodial or visitation rights, as well as for financial support responsibilities. It can also be important for the health of the child because it can reveal genetic risks for certain medical conditions.

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Military Parents 101 3. Child Support Payments.

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New Jersey Child Support OrdersMilitary Income Available for Support

• Military income available for New Jersey child support and/or spousal support includes both basic and special pay, as well as any benefits provided in lieu of pay, such as food and housing.

• The servicemember's LES will include amounts for basic pay and any special amounts such as jump, dive, or flight pay.

• Calculating available gross income requires review of the LES and assessment of an appropriate value for any benefits received in lieu of pay.

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Military Parents 101 3. Child Support Payments.

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Child Support Orders Deployment or Call to Active Duty

• Servicemembers with child support orders who are called to active duty must notify the local child support office with information regarding date of activation, new address and military branch.

• For support recipients this guarantees ongoing support without interruption.

• For support obligors, this provides protection against changes that may be made in the obligor’s absence due to inability to locate the obligor.

• The servicemember can complete and file an authorization and release form from the state agency designating another person to receive information about the case during the servicemember’s absence.

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Military Parents 101 3. Child Support Payments.

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Child Support OrdersModification for Activation or Deployment• Activation or deployment may substantially change income,

creating eligibility for a change in child support.

• The parent requesting a change needs to file a motion for modification in court.

• If you have a wage withholding order, contact the Probation Division or the Administrative Office of the Courts, Family Division, to avoid the risk of having your wage withholding payments stopped or recorded as delinquent.

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Military Parents 101 3. Child Support Payments.

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Child Support Orders Enforcing Payments

• A court can sometimes proceed with an order for temporary support even if a servicemember is attempting to stay proceedings. A hearing may be held via telephone conference.

• Parents with an order for payment of support from the New Jersey Family Court, or from the New Jersey Office of Child Support Services, can request wage garnishment through the Department of Finance and Accounting Service (DFAS).

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Military Divorce 101 2. Support Payments.

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Child Support Orders Additional Enforcement Remedies

• Federal Income Tax Refund Offset: IRS intercepts federal income tax refunds and sends the money to the federal Office of Child Support Enforcement (OCSE),

• Liens on Real or Personal Property: Prevents the owner from selling, transferring, or borrowing against the property until the child support debt is paid.

• Attachment of accounts: May apply to accounts at banks or other financial institutions,

• Suspension of licenses: May apply to drivers’, professional and occupational, and sporting/recreational licenses.

• Passport Denial: A civilian passport may be denied if the obligor is more than $2,500 in arrears

• Additional remedies: Other remedies are available through court process, including potential incarceration.

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Military Parents 101 3. Child Support Payments.

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Child Support Orders Enforcement by Wage Garnishment

• Branch regulations require servicemembers to honor support orders.

• Each military branch has its own wage garnishment procedures.

• There is a federal statutory allotment procedure specially designed for military obligors. The servicemember receives advance notice of implementation, and within the first 30 days after notice will be offered an in-person consultation with a judge advocate or a legal assistance officer to address the arrearage.

• The federal procedure can only be utilized if there is:

o A court or an administrative order establishing child support, and

o An arrearage of at least two months support under the obligation.

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Military Parents 101 3. Child Support Payments.

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Child Support Orders Enforcement between States

• Under the UIFSA a state’s support order can be filed in a second state where the obligor parent has income or assets.

• The parent receives notice of the registration and has an opportunity to contest the registration, the underlying order, or the statement of arrears.

• If the registered order is confirmed, the court or agency of the second state will enforce it according to their laws.

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Military Parents 101 3. Child Support Payments.

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Military Benefits Healthcare for Children

Military Parents 101 4. Military Benefits for Children.

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Defense Enrollment Eligibility Reporting System (DEERS)

• DEERS is a computerized system that keeps track of all recipients entitled to military benefits.

• All of a servicemember’s dependent children, whether they live with the servicemember or not, are eligible to register with DEERS, provided that a military installation with an ID card issuance site has determined that the child relies on the servicemember for more than 50% of support.

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Military Parents 101 4. Military Benefits for Children.

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Enrolling Children in DEERS

• Required documents include a certified copy of the child’s birth certificate, and, if paternity is an issue, a copy of the paternity order or signed acknowledgment form.

• A non-military custodial parent can also enroll a child into DEERS by mail by contacting a military installation or unit with a RAPIDS ID Card Issuing Facility in the same service branch as the military parent.

• The parent will need the documentation showing eligibility and the military parent’s social security number.

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Military Parents 101 4. Military Benefits for Children.

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Obtaining Medical Benefits through Tricare

• Once registered with DEERS, a child will be able to receive treatment in a military facility or a civilian hospital under TRICARE.

• Children under 10 can use the parent’s ID card, but all children should have their own card if they don’t live with the servicemember.

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Military Parents 101 4. Military Benefits for Children.

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References & Resources

• You can find a U.S. Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement guide called Handbook for Military Families at: http://www.acf.hhs.gov/sites/default/files/programs/css/military_handbook_final_20130329_0.pdf

• More information on New Jersey family court procedures is available on-line from the state judiciary at: http://www.judiciary.state.nj.us/family/index.html

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Military Parents 101 References/Resources

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References & Resources

• More information on military health insurance can be found at the Tricare site: http://www.tricare.mil/.

• Information about military policy on single parents can be found in the American Bar publication SILENT PARTNER Custody and Single-Parent Enlistment: http://apps.americanbar.org/family/military/silent/singleparent_enlist.pdf

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Military Parents 101 References/Resources

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For more information on New Jersey child custody or support for servicemembers or their spouses, please

visit WeinbergerLawGroup.com,

or consult our various books on Military Divorce, Child Custody, Child Support, and more, available on

Amazon.com.

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Military Divorce 101 Questions? Can We Help?

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Schedule your FREE confidential legal consultation to discuss your Divorce in New Jersey

[email protected]

The process and information contained in this presentation pertains to New Jersey Divorce Law.This presentation is for information purposes only and does not constitute legal advice.

For guidance on your specific situation, please contact a divorce attorney.

(888) 888-0919

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Military Divorce 101 Questions? Can We Help?