The Deployed Parent and Child Custody

Many states hold that a pre-existing custody and parenting order should only be modified during the period in which a parent is deployed and that such a modification is not to be deemed a change of circumstances. Some states automatically reinstate the prior post-deployment order. By way of example, Missouri's applicable statute, Mo. Rev. Stat. 452.412 (2009), allows for temporary modification of an existing custody or visitation order if a parent is deployed out-of-state, but that temporary modification cannot exceed the length of deployment. Colorado follows the same time frame for the temporary modification. In North Carolina, on the other hand, the order automatically reverts to the pre-deployment order 10 days after the parent returns from deployment.

New Jersey currently has no statute to balance the two conflicting public policies, even though in 2005-2006, the following was proposed, but not adopted:

If a motion for a change of custody is filed during a time a parent is in active military duty, the court shall not enter an order modifying or amending a judgment or order previously entered, or enter a new order that alters the custody arrangement in existence on the date the parent was called to active military duty, except that the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.

Michigan also uses the “clear and convincing standard for the best interest of the child.” In many other states, by contrast, a parent's absence due to deployment, by itself, is not sufficient to justify a modification of custody or parenting time order. For example, California Family Code 3047 (2009) states that:

A party's absence, relocation or failure to comply with custody and visitation orders shall not, by itself be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military service and deployment out of state.

States such as Georgia, Idaho, Maine, Missouri and North Carolina allow a parent, about to be deployed, to delegate the care and custody of a child to a grandparent, without the need for court approval. Georgia Code Ann. 19-9-122 (2009) states that:

A parent of a minor child may delegate to any grandparent residing in this state care giving authority regarding the minor child when hardship prevents the parent from caring for the child. This authority may be delegated without the approval of a court by executing in writing a power of attorney for the care of a minor child in a form substantially complying with the provisions of this article.

The Service Members Civil Relief Act, (SCRA) 50 U.S.C.A. App. ” 501-96, governs the general rights of a deployed service member. Judges can grant stays of custody proceedings if the military service will materially affect the service member's ability to participate in the proceedings. However, these stays are only mandatory for 90 days, and most deployments last much longer. Furthermore, the SCRA has no provision for a temporary custody award and gives no guidance as to how to balance the service member's interest against the best interest of the child.

National Conference of the Commissioners on Uniform Laws

Relief, however, may be on the way. A drafting committee under the aegis of the National Conference of the Commissioners on Uniform Laws (NCCUL) has been studying issues implicated when balancing the needs of our deployed military personnel against the needs of the
children in their lives. Its goal is to see a uniform policy promulgated throughout the country.

The proposed act, as currently drafted, has a definitional article that distinguishes between the various types of parent-child relationships. It distinguishes between primary custodial responsibility, visitation, and limited contact. Another provision lays out procedures for obtaining temporary custody orders during deployment. Yet another provision sets forth court procedures that could allow a deployed service member to assign his or her custodial responsibility to a third party. This is not to say that all issues have yet been fully addressed. For example, there remains a debate within the drafting committee as to the wisdom of assigning custodial responsibility to a third party rather than to a resident parent. As currently proposed, the assignment of custodial responsibility to a third party is treated under three separate categories. One would govern requests to assign primary custodial responsibility to that party. (Primary custodial responsibility is defined as physical custody for more than 50% of the time.) Another category would govern requests to assign visitation rights to a third party. (Visitation is considered physical custody of the child for less than 50% of the time.) The last category would govern limited contact with a third party and a child. (In this case, the third party would not have the same bundle of rights concerning the child as the party with primary physical custody or visitation rights.)

As already noted, termination of temporary custody orders is handled differently from state to state. In that regard, the proposed Uniform Law would seek to provide consistent countrywide results on issues such as when temporary custody orders would terminate upon a parent's return from deployment. At this stage, the drafting committee has rejected the automatic revision approach because of its concerns about what would be in the best interest of the child. This is based on the committee's belief that reversion to the pre-deployment order should be made as easy as possible for the returning parent. Thus, the drafting committee is currently suggesting that when a parent's deployment is over, she or he could request the court to reinstitute the pre-deployment custody arrangement. Absent an objection, that order would be reinstated. “If the non-deploying parent objects, the section [would provide] for an expedited hearing on the issue, and directs the court to terminate the temporary order unless it finds that doing so is likely to cause the child substantial harm.” (See Memorandum, National Conference of the Commissioners on Uniform State Law.)

Conclusion

The drafting committee member still harbors a concern that a state court would view deployment as a negative factor in custody decisions, even though many would argue that most state statutes clearly hold that deployment is not to be held against a deployed parent.

This is an important issue, deeply important to our national character and even more so to affected children and their deployed parents. As such, our military men and women around the world have a right to a uniform standard when dealing with custody and parenting time issues. Our existing state-by-state approach does not afford a divorced parent in the military the comfort of certainty and consistency when it comes to decisions affecting his or her child. Currently, a child's rights depend on where that child lives, even though her or his parent is serving all who live throughout our 50 states, commonwealths, and territories. The current federal statute does not even begin to address the myriad issues involved. Clearly, it is time for a uniform law that sets forth the rights, duties, and obligations of all those involved. Family law practitioners all should welcome the NCCUSL drafting committee's efforts and look forward to the day its work product is adopted throughout the United States.

Karen Meislik, a member of this newsletter's Board of Editors, is a Principal in the Montclair, NJ, law firm of Meislik & Meislik. She practices family law exclusively and is certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.

Parents who disappear from their children's lives are usually not well treated by the courts. Almost everywhere, the dominant public policy when it comes to a child's welfare is to ask, “What is in the best interest of the child?” This, however, is not the only public policy to guide court decisions. Another relevant policy involves protecting the rights of the men and woman deployed in the service of our country. Currently, when those two public policies conflict, the result differs from jurisdiction to jurisdiction and from court to court. A patchwork of state legislation and court precedents leads to confusion and uncertainty on the part of our military parents stationed throughout the world. According to the Department of Defense, the United States has hundreds of thousands of men and woman actively serving in the military and more than a hundred thousand members in the National Guard and Reserves. Yet, we have no cohesive rules governing the relationship between a divorced or divorcing parent and his or her child when that parent is deployed in military service.

Varying State Decisions

State court decisions vary significantly when it comes to resolving custody and parenting time issues when a parent is deployed in military service. There are many issues a court has to face in such situations: Should an existing custody and parenting time order be changed permanently or temporarily? Should there be an automatic right of reversion to the post-deployment order once the parent's deployment ends? Should the absence of a deployed parent be considered a change of circumstances? Should a deployed parent be penalized because of her or his noncompliance with custody and parenting time orders? Overriding all of these issues is the best interest of the child.

Many states hold that a pre-existing custody and parenting order should only be modified during the period in which a parent is deployed and that such a modification is not to be deemed a change of circumstances. Some states automatically reinstate the prior post-deployment order. By way of example, Missouri's applicable statute, Mo. Rev. Stat. 452.412 (2009), allows for temporary modification of an existing custody or visitation order if a parent is deployed out-of-state, but that temporary modification cannot exceed the length of deployment. Colorado follows the same time frame for the temporary modification. In North Carolina, on the other hand, the order automatically reverts to the pre-deployment order 10 days after the parent returns from deployment.

New Jersey currently has no statute to balance the two conflicting public policies, even though in 2005-2006, the following was proposed, but not adopted:

If a motion for a change of custody is filed during a time a parent is in active military duty, the court shall not enter an order modifying or amending a judgment or order previously entered, or enter a new order that alters the custody arrangement in existence on the date the parent was called to active military duty, except that the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.

Michigan also uses the “clear and convincing standard for the best interest of the child.” In many other states, by contrast, a parent's absence due to deployment, by itself, is not sufficient to justify a modification of custody or parenting time order. For example, California Family Code 3047 (2009) states that:

A party's absence, relocation or failure to comply with custody and visitation orders shall not, by itself be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military service and deployment out of state.

States such as Georgia, Idaho, Maine, Missouri and North Carolina allow a parent, about to be deployed, to delegate the care and custody of a child to a grandparent, without the need for court approval. Georgia Code Ann. 19-9-122 (2009) states that:

A parent of a minor child may delegate to any grandparent residing in this state care giving authority regarding the minor child when hardship prevents the parent from caring for the child. This authority may be delegated without the approval of a court by executing in writing a power of attorney for the care of a minor child in a form substantially complying with the provisions of this article.

The Service Members Civil Relief Act, (SCRA) 50 U.S.C.A. App. ” 501-96, governs the general rights of a deployed service member. Judges can grant stays of custody proceedings if the military service will materially affect the service member's ability to participate in the proceedings. However, these stays are only mandatory for 90 days, and most deployments last much longer. Furthermore, the SCRA has no provision for a temporary custody award and gives no guidance as to how to balance the service member's interest against the best interest of the child.

National Conference of the Commissioners on Uniform Laws

Relief, however, may be on the way. A drafting committee under the aegis of the National Conference of the Commissioners on Uniform Laws (NCCUL) has been studying issues implicated when balancing the needs of our deployed military personnel against the needs of the
children in their lives. Its goal is to see a uniform policy promulgated throughout the country.

The proposed act, as currently drafted, has a definitional article that distinguishes between the various types of parent-child relationships. It distinguishes between primary custodial responsibility, visitation, and limited contact. Another provision lays out procedures for obtaining temporary custody orders during deployment. Yet another provision sets forth court procedures that could allow a deployed service member to assign his or her custodial responsibility to a third party. This is not to say that all issues have yet been fully addressed. For example, there remains a debate within the drafting committee as to the wisdom of assigning custodial responsibility to a third party rather than to a resident parent. As currently proposed, the assignment of custodial responsibility to a third party is treated under three separate categories. One would govern requests to assign primary custodial responsibility to that party. (Primary custodial responsibility is defined as physical custody for more than 50% of the time.) Another category would govern requests to assign visitation rights to a third party. (Visitation is considered physical custody of the child for less than 50% of the time.) The last category would govern limited contact with a third party and a child. (In this case, the third party would not have the same bundle of rights concerning the child as the party with primary physical custody or visitation rights.)

As already noted, termination of temporary custody orders is handled differently from state to state. In that regard, the proposed Uniform Law would seek to provide consistent countrywide results on issues such as when temporary custody orders would terminate upon a parent's return from deployment. At this stage, the drafting committee has rejected the automatic revision approach because of its concerns about what would be in the best interest of the child. This is based on the committee's belief that reversion to the pre-deployment order should be made as easy as possible for the returning parent. Thus, the drafting committee is currently suggesting that when a parent's deployment is over, she or he could request the court to reinstitute the pre-deployment custody arrangement. Absent an objection, that order would be reinstated. “If the non-deploying parent objects, the section [would provide] for an expedited hearing on the issue, and directs the court to terminate the temporary order unless it finds that doing so is likely to cause the child substantial harm.” (See Memorandum, National Conference of the Commissioners on Uniform State Law.)

Conclusion

The drafting committee member still harbors a concern that a state court would view deployment as a negative factor in custody decisions, even though many would argue that most state statutes clearly hold that deployment is not to be held against a deployed parent.

This is an important issue, deeply important to our national character and even more so to affected children and their deployed parents. As such, our military men and women around the world have a right to a uniform standard when dealing with custody and parenting time issues. Our existing state-by-state approach does not afford a divorced parent in the military the comfort of certainty and consistency when it comes to decisions affecting his or her child. Currently, a child's rights depend on where that child lives, even though her or his parent is serving all who live throughout our 50 states, commonwealths, and territories. The current federal statute does not even begin to address the myriad issues involved. Clearly, it is time for a uniform law that sets forth the rights, duties, and obligations of all those involved. Family law practitioners all should welcome the NCCUSL drafting committee's efforts and look forward to the day its work product is adopted throughout the United States.

Karen Meislik, a member of this newsletter's Board of Editors, is a Principal in the Montclair, NJ, law firm of Meislik & Meislik. She practices family law exclusively and is certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.