By Mark E. Sullivan and Kris Hilscher, AAML

So, your client wants to join the military … but they’re a single parent. Or maybe they’re already in and raising grandkids, nieces or a cousin’s child while asking, “Can I get Tricare for this child?” Before you respond with “Sure, let’s draft a power of attorney and call it a day,” take a breath — and read this.

There’s a web of Department of Defense (DoD) instructions, branch-specific rules and federal statutes that say what can and can’t be done. And they’re not always friendly to the “it’ll work itself out” school of custody planning. Here’s how to steer your military and military-adjacent clients through the maze — without getting court-martialed by logic.

When Custody Stops the Clock on Enlistment 

Let’s start with Jane Doe. She’s single, has two kids and just got a call from a recruiter. She’s ready to trade diapers for dog tags — but someone told her she’ll first have to “give away her kids.” While the phrasing is a little dramatic, the core of it is correct.

Across every branch, from the Marines to the Coast Guard, the military has one universal rule: no enlistment for single parents with custody. Not even with a waiver. Not with a wink and a nod. Not even if Grandma’s been watching the kids every weekend since birth.

Why? Because the military expects every servicemember (SM) to be deployable, reliable and unencumbered. Uncle Sam doesn’t want to compete with daycare schedules. The core rule comes from DoD Instruction 1304.26, and it’s repeated in each branch’s recruiting regulations. That means you, dear lawyer, are not going to talk your way around it with a strongly worded cover letter. What your client needs is a court order transferring full, permanent custody to someone else. Not temporary, not shared and definitely not “just until I finish boot camp.”

Powers of Attorney: Great for Cars, Bad for Kids 

Jane’s first instinct might be to use a power of attorney (POA) as the “work-around” so she doesn’t “lose the baby.”  Don’t fall for this simplistic solution. Military regulations specifically say that a POA won’t do. Jane needs a court order that makes someone else the legal and physical custodian, fully and finally. No detours. If the order says “temporary,” or even implies that mom can take the kids back after enlistment — guess what? Disqualified.

It doesn’t even help to explain in the order that mom is giving up custody “so she can enlist.” That’ll get her bounced from processing faster than you can say “ineligible.” Anything short of a permanent custody transfer will be rejected.

Custody to Whom, Exactly?

But what if dad — “Jack Green,” we’ll call him — happens to be around, and he’s not legally unfit? Guess what? He gets a say. You can’t just sidestep him unless you’ve got facts that show abandonment, abuse, neglect or other behavior that puts him outside the bounds of parental rights. Courts usually frown on cutting a parent out of the picture without a clear and compelling reason.

And if Jack Green, our dad, is willing to give up his custody claim? Great — get a clean, signed consent and draft a proper order.

But be careful. Don’t go fancy with language. Don’t call it “joint” anything. Don’t suggest a shared schedule. Keep it straightforward: full, final, sole custody to someone other than your client.

Let’s Talk Benefits (a/k/a When Custody Has Perks)

Now, flip the scenario. Your military or retired client didn’t just walk into custody — they ran into it. Maybe a daughter fell on hard times, and now Grandpa, a retired colonel, has his grandkids full-time. Naturally, he wants to put them on Tricare and get them base privileges. That sounds reasonable, right?

Enter the rules and regulations, such as AFI 36-3026 and 10 U.S.C. § 1072. These outline the narrow path by which non-biological children — those not born to or adopted by the SM — can qualify for military benefits. They’re technically designated as legal custody wards, but let’s just say “kids they’re raising.”

Here’s the “bottom line” for the client: the child must be in the legal custody of the SM by court order for at least 12 months, depend on the SM for over half their support and live with the SM (unless separated for reasons like military deployment or medical care). Oh, and the child cannot be someone else’s military dependent.

Sounds simple, but what if your judge doesn’t love the idea of a “12 months minimum” requirement? Custody is always modifiable under state law, and courts don’t usually want to make promises about the future. So how do we square the circle?

The DFAS Compromise: How to Say “12 Months” Without Saying “Forever”

The Defense Finance and Accounting Service (DFAS) (a/k/a the military’s bean counters) have actually provided a workable answer.  After an inquiry by Navy Legal Assistance Attorney Dwain Alexander, DFAS agreed to accept court orders that include the following language:

“The prevailing party shall have custody (or guardianship) of the minor child for a period of not less than 12 months. This order is subject to further court order and modification should there be a substantial and material change of circumstance affecting the welfare of the minor child.”

Translation: “Yes, we know family law is always changing. But just say you meant for the custody to last 12 months, and we’ll count it.”  The above will meet the requirements — that’s your golden ticket for getting benefits access in these cases. Not every base or office will take it automatically, but DFAS says they’ll advise compliance as long as the language is used. It might not be as interesting or important as an appellate decision, but it’ll get your client an ID card and a Tricare card.

The Big Picture (and a Reminder to Breathe)

These custody-and-benefits issues can feel like you’re juggling two law libraries: one for the state and one for Uncle Sam and the Pentagon. But with a little prep and the right language, you can guide your client through without getting tied in bureaucratic knots.

Try to remember these quick takeaways:

• No temporary custody.
• No POAs.
• No explanations in orders about military enlistment.
• And yes, there’s a loophole (blessed by DFAS!) to make 12-month custody work in practice.

If you’re ever in doubt — and it’s easy to be — reach out to someone who handles these sorts of things every day, such as a current or former staff judge advocate. A current JAG won’t give you legal advice, but they should point you in the right direction or confirm whether an order meets their needs.  A former JAG or military family law expert should be able to walk alongside you and your client, aiding in getting where you want to go.

Now, go forth, counselor. And may your custody orders be clear, your clients eligible and your judges understanding!

Messrs. Sullivan and Hilscher are Board-Certified Specialists in Family Law and Fellows of the American Academy of Matrimonial Lawyers. Their firm is located in Raleigh, North Carolina. Mr. Sullivan is a retired Army Reserve JAG Colonel and author of The Military Divorce Handbook, published by the American Bar Association. Mr. Hilscher is chair of the Military Committee of the ABA Family Law Section and an appointed member of the ABA Standing Committee on Legal Assistance for Military Personnel (LAMP). They can be reached at 919-832-8507 and at law@ncfamilylaw.com.