Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“I am an active duty military member on tour in Iraq, I have two daughters with my soon to be ex-spouse, paperwork was not filed due to monetary issues prior to my deployment. The children are now residing with my sister in the state of Georgia, My sister has a full parental power of attorney regarding my daughters, My daughters are reisiding with her due to my being overseas for 6 months they ended up with her as a result of my leaving my wife calling me a month prior to my departure asking me to take the children, she at the time was contemplating a job and residence change, She currently resides in a 2 bedroom apartment and has a son by her previous husband. I am now concerned because she has been speaking of going to my sister’s house and getting my daughters. This is not acceptable to me. Is there anything that can be done to get a temporary custody order for my sister in regards to my daughters….I am desparate at this time and any advice you can give would be greatly appreciated.”
Question: The Court is not going to permanently amend a custody order while you are on active deployment, though it may issue temporary orders. Even though your sister seeks to stand in your shoes for the purpose of the custodial arrangement, and she has your power of attorney, she is not you. You also did not mention whether you and to-be-ex had actually modified the Court order. If your wife can show that it is in the children’s best interest to come with her, then she can probably get a temporary order to get them back with her. Additionally, if the order _IS_ that she has custody, you are not really in the position to contest it to push for placement with your sister. There are a lot of cases that stand for the proposition that a fit parent has the right to extended parenting time during the other parent’s deployment rather than to have placement of the children with a third party (i.e. your sister). As much as you might want to fight for your sister getting temporary custody this is going to be tough, especially if to-be-ex is an otherwise fit parent.
