Custody battle: Panel to standardize rights for military parents
A legal panel meets today to approve the Deployed Parents Custody and Visitation Act, a set of codes for states to adopt that will standardize custody rights for deployed military parents.
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"It seems like every time I go to court I get beat up because I am in the military," said Moreno, who is 31 and living in New Orleans, working as an air traffic controller for the Navy.Skip to next paragraph
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Federal legislation has been introduced in Congress to amend the Servicemembers Civil Relief Act to include protections for deployed service members in child custody cases, but the Uniform Law Commission, which writes only state legislation, has opposed this effort because they argue family law is a state's rights issue.
Fish said while the proposed federal law and the uniform state code share some similarities, he said the federal law is vague and would create unnecessary complexity to an already complicated area of law.
"Service members themselves are going to be completely lost because they are going to hear there is a federal law and not understand the difference of who is in charge, federal or state law," he said.
US Rep. Michael Turner (R-Ohio) is the sponsor of the federal legislation that passed in the House for seven straight years but has stalled in the Senate. He said his bill wouldn't create federal jurisdiction for custody matters, but instead would ensure minimum protections for military parents.
"Our bill only establishes a floor minimum," he said. "States could have and do have much more stringent pro-military custody statutes."
Mr. Turner said family law courts are biased against parents who are absent, even if it's because of a military deployment.
"Our bill certainly permits the courts' taking into consideration the best interests of the child, however, it does not permit the service member's absence in serving our country to be used against them," he said. "The uniformed law that's currently being considered would do absolutely that and would result in service member's losing their children."
Attorney Mark Sullivan, who practices family law in North Carolina and is a retired Army reserve JAG colonel, was the chair on the committee that helped draft the uniform code. He said one of the key points of the law establishes that the mere absence of a military parent from a state will not be used to deprive that state of custody jurisdiction.
"For most cases, a move is a purely voluntarily thing. For service member, the move is not voluntary and that involuntary move should not be punished by the loss of jurisdiction," said Mr. Sullivan, who is the author of the Military Divorce Handbook, 2nd edition, 2011, published by the American Bar Association.
Sullivan believes that states should regulate child custody, divorce and other family law and that has traditionally been the rights of the states.
"We shouldn't be writing rules, specific rules about custody, in the US code," he said.
Once the uniform code is approved, the commission's members plan to push for the code to be introduced starting next year in state legislatures, said Fish.
"This is an approach to maintain states' rights and protect service members across the country, without creating an invasive federal system that is just going to confuse child custody," Fish said.