By: Patricia M. Lee
In representing United States military servicemembers, we are often faced with very difficult situations involving servicemembers who are deployed to locations far away from their families, or for long periods of time. This can materially affect their relationships with spouses and children, especially in high conflict divorce situations. How do we structure long term parenting plans and enforce contact provisions remotely? Should servicemembers forced to be absent from their children be penalized in custody decisions? Should there be federal laws protecting our servicemembers or should each state pass laws allowing for such protection? This is a very difficult, often heartrending, area of the law, which is in continuing flux across the United States.
The United States Congress, as well as the American Bar Association, uniform law proponents, and almost every state legislature have made ongoing attempts to address these difficult situations and to protect United States military servicemembers from the sometimes harsh realities of deployment. However, the family law practitioner could face extreme difficulties should federal laws be passed addressing these issues or when attempting to call into play many of the various state laws recently passed to protect United States military servicemembers.
Most concerning is the bill proposed by Ohio State Representative Mike Turner which seeks to amend the Servicemembers Civil Relief Act (SCRA) with the “Turner Bill.” From 2008 through 2013, the Turner Bill, containing variations of the same language, has passed the House seven times. The bill seeks to federalize law applicable to child custody cases in which the custodial parent is in the military service. The latest version of the proposed legislation may be found in H.R. 1898 (May 8, 2013).
Currently, there is no federal family law in the United States and, in the absence of such federal law, each state is delegated with the authority to create its own body of law in the area of domestic relations. Thus, there are differences in each state’s laws regarding custodial matters, including the consideration of military service or deployment as a factor in both initial proceedings and modification of custodial determinations. The Turner Bill would require that if a state judge has ordered a transfer of custody on a temporary basis based upon military deployment, there must be a return to the prior custody order once the deployment ends, unless the court finds it is not in the best interests of the child. Further, the Turner Bill states specifically that deployment may not be a factor in deciding on the child’s best interests in setting or modifying custody rights. The latest version also provides that it is not meant to provide a Federal right of action and that if state laws provide for a higher standard of protection to the rights of the deploying servicemember, then the higher state standard shall apply.
While on its face the proposed federal legislation attempts to protect the rights of servicemembers and their children during deployment, closer consideration raises possibly alarming consequences. The time and prohibitive costs of litigating family law matters in federal court alone would adversely affect every family member involved in the federal court system. However, perhaps more important is the fact that federal courts may be ill-equipped to deal with domestic relations issues, due to both a lack of resources, as well as inexperience in the area of domestic relations, which has historically been the sole purview of state courts with experienced judges assigned specifically to family law sections.
Of particular concern is the inability of federal courts to access many resources sometimes critical to assure courts are made aware of impartial evidence regarding the best interests of children, as well as the availability of affordable alternative dispute resolution services. These services include experienced, and often subsidized, family law mediation facilities, volunteer and/or subsidized guardian ad litem programs, social investigators, and parenting facilitators. The financial impact upon federal courts in duplicating these resources already available in many state courts could be astronomical, and most likely, prohibitive, leaving children as well as parents at the mercy of an ill-informed and inexperienced court already suffering from recent budget cuts.
Pursuant to the above reasoning, it is imperative that each state consider passage of its own legislation for the protection of military servicemembers. In fact, over forty states have already passed such legislation, with the remainder following close behind. These laws variously provide that a court may not base loss of custody upon any form of military absence, whether temporary duty, remote assignments, or deployment. Other recent laws allow for the delegation of visitation and custodial rights to other family members while the servicemember is absent, for electronic or telephonic appearance at hearings, expedited hearings, and access to children for visitation during military leave.
Most importantly, each state court has the discretion, and obligation, to assure continuing and meaningful contact with both parents. In furtherance of this obligation, thirty-five states and the District of Columbia have followed a burgeoning trend across the nation to promote joint custody as a presumption, or at least a strong preference, in custodial disputes. Most states have even eliminated the terms “custody” or “primary residential parent” in favor of no designation of custodial parent, and instead simply adopt a parenting plan or time sharing plan. Further, by federal mandate, all states are required to pass laws establishing presumptive uniform child support calculation guidelines and to promote enforcement of support, as well as the availability of child support enforcement services to all custodial parents regardless of whether they are receiving welfare.
These state laws may be used by the experienced family law practitioner to successfully argue that the military servicemember should be given consideration and special accommodations to assure contact with children, as well as fairness in a support determination, even while remotely deployed. The state courts also have the discretion to determine that such deployment should not be utilized as a determining factor to limit contact or custodial rights, and in some states this is legislated.
However, state laws along these lines do not always provide for adequate redress for every problem that may arise when dealing with the military parent. Of particular concern are state laws which provide for the delegation of parenting rights to third parties upon deployment, which may include step-parents or grandparents with whom the primary custodial parent does not get along. Passage of such laws may raise constitutional concerns, as parenting rights have long been recognized by the United States Supreme Court as fundamental rights under the United States Constitution. Most states also recognize parenting rights as fundamental under their state constitutions. Delegation of these fundamental parenting rights by law to any third party is analogous to the line of cases addressing grandparent rights. Courts across the nation have long applied the compelling governmental interest standard in analyzing state statutes requiring the delegation of parenting rights to grandparents, and found them to be facially constitutionally deficient. This argument may be asserted in defense of the assertion of such rights by a military servicemember, and cause ongoing problems between parents as well as extended family members.
In essence, dealing with the United States military servicemember parent is not an easy matter, particularly if the parents will, of necessity, be living apart for long periods of time. Many concerns and unfair decisions may arise which in effect penalize the absentee servicemember for an involuntary deployment in consideration of the best interests of the child. Proposed federal legislation may only exacerbate the problem, yet many states may have gone too far in impinging upon the fundamental rights of parents to make decisions affecting their children without governmental interference.
The better practice is to invoke a state court’s obligation to consider the manifest best interests of children to maintain a meaningful and ongoing relationship with both parents, even the absentee military parent; to carefully craft an enforceable long distance parenting plan; and to preclude penalties permanently affecting a servicemember’s rights based solely upon long distance, or long term, deployment. These remedies should be addressed by constitutionally viable state legislation giving state court judges the discretion they need to consider each unique family situation individually and to utilize the state court resources available to assure the ongoing welfare of families.