How should a court decide a child custody dispute in which both parents seem equally fit, except that one is a service member who will need to be deployed? Is it fair for the court to base its decision based solely on the service member's military career?

Defense Secretary Robert Gates recently voiced that he supports legislation to prevent service members from losing custody of their children solely because of their need to be deployed. While acknowledging that his position isn't shared by many lawyers, he said that he is convinced the benefits outweigh any risks concerning the welfare of the child.

The Defense Secretary said that, after thinking the matter over, he now is in support of regulations that give service members a federal protection in cases where military service is the only factor on which a court is basing its child custody decision.

Secretary Gate's stance on the issue, which was sent in a letter to Representative Michael Turner of Ohio, is a reversal of the Defense Department's previous position on the issue.

Recent Defense Department study examining the issue found no instances in which service members have lost custody solely because of military service. But some troops believe that custody decisions not in their favor are often based largely on the fact that they are frequently deployed for extended periods during wartime.

While the Pentagon has always held that the child's welfare is the most pressing concern and that state court's are in the best position to decide on the issue, it has also sought in the past to encourage state courts not to base their custody and visitation decisions solely on service members' absence for military service.

Individuals who are caught in undesirable custody arrangements often choose to have the custody order modified by a court. Child custody orders may be modified for a number of reasons, including relocation, change of working hours, or entering a new marriage.

Source: Army Times, "Gates now supports law to protect child custody," Karen Jowers, 17 Feb 2011.