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The best attorneys prepare thoroughly and take pains to develop individual facts that will motivate the judge to grant (or deny) a stay of proceedings. The major themes in these cases are lack of access to the children during the proceedings, specificity of the information provided to the court about conflicting military duties, and conduct and motivation of the moving party.
When counseling the military parent, try to arrange an orderly transfer of custody to the other party by means of a consent order prior to deployment. Such an order should specify the circumstances of the transfer; the date of departure and expected date of return; the satisfactory nature of the departing parent’s home, educational opportunities available to the child, other custodial arrangements; and care prior to leaving. Also make findings regarding the adequacy of the new surroundings and the intention of the parties to be bound by the agreement to return the child at the end of the deployment. Include the immediate return of the child upon the military parent’s return (without the need to apply to the court for relief). The custody order also should provide for payment of attorney’s fees and other expenses if resort to the court for an enforcement order becomes necessary.
The general rule illustrated by the case law is that “children come first,” regardless of the rules of delay that are found in the SCRA. Courts have concluded that the Act is not to be used “as a vehicle of oppression or abuse.” Courts should not allow SM–litigants to take unfair advantage of it, since it was enacted to protect servicemembers, not to be employed unjustly.
The transfer of custody to a nonparent (new spouse) was the issue in Lebo v. Lebo, 2004 La. App. LEXIS 1642, decided in the context of a military father who had been awarded primary custody and who was deployed to Afghanistan. He left the child behind in the care of his new wife to the exclusion of the ex-wife, who shared joint custody with him. He used a power of attorney (apparently a guardianship power of attorney executed as part of his military family care plan) to give custody to the child’s stepmother.
The court of appeals reversed the trial court and remanded for a hearing to determine temporary custody of the minor child, stating that a parent who has primary custody (the “domiciliary parent”) may not unilaterally change custody; the power to modify a custody order belongs to the courts. In this case, the SM–father chose not to call upon the SCRA to stay the proceedings, deciding instead to hire counsel and proceed with litigation.
In cases where the deploying SM– parent has placed the child with a substitute parent (typically a grandparent or new spouse) and then invokes the SCRA to attempt to avoid a hearing for the return (custody) of the child to the nondeployed parent, the usual result is that temporary custody is given to the nondeployed parent. This is the result in Lenser v. Lenser, 2004 Ark. LEXIS 490, and Diffin v. Towne, 2004 NY slip op. 50465U, 2004 N.Y. Misc. LEXIS 622 (May 21, 2004, unpublished). In both decisions, the court awarded custody, in spite of the stay provisions of the SCRA, to the nonmilitary parent. In the latter case, the judge stated that no disqualifying circumstances existed with the nonmilitary parent and swept aside the mother's argument that her new husband should take care of the child pending her return from an indefinite mobilization period, stating that "the step-father has no legal or moral obligation to support the child, has no legal ability to obtain medical care for the child, and has no legal ability to inquire as to the education of the child…. [T]he mother’s argument is incorrect if she intends to argue that a nonparent is more suitable than the natural father to be the de facto physical custodian of this child while she is away on active duty.”
Similar results, granting application of the stay provisions of the SCRA but allowing placement or temporary custody of the child on an interim basis, occurred in In re Marriage of Grantham, _ N.W.2d _, 2005 Iowa Sup. LEXIS 75 (Iowa 2005), in which the father attempted to give custody through his military family care plan to the child's paternal grandmother, and the mother obtained temporary custody while the father pursued an appeal that was ultimately unsuccessful.
The SCRA/custody cases show the difficulties judges have in wrestling with the reconciliation of conflicting interests, such as the need for an immediate decision on care of a child (when the custodial parent is absent) and the need to stay proceedings when the nonmoving party is in the military and unavailable. Judges find supporting a stay of proceedings under the SCRA difficult, regardless of how “unfair” it might seem to have the hearing without the SM present, when the alternative is to defer, delay, or deny the decision on what happens to the child when the parent with legal custody is not present.
Can a servicemember ever hope to win custody? Some claim an inherent bias against military parents in custody cases. Judges, they argue, always rule against a military parent when custody is at stake. As with everything else in the area of custody litigation, the answer to this question is “it depends.”
If he or she is assigned to a unit that frequently deploys overseas, has irregular training schedules that often involve weeks spent “in the field,” or has other limitations that would adversely impact continuous and consistent care of a child, then the SM would be “shooting himself in the foot” in seeking custody while on active duty. It would probably be a waste of money to go to court for custody given these challenging obstacles. In such cases, it may behoove the attorney to tell the client that custody and military service are incompatible. Courts often see disruption, deployment, and distance from the other parent as obstacles to continuity and stability—keystones of a good custody arrangement.
Custody practitioners who handle military cases recognize that military duty can be turned into a real advantage if the issues of scheduling and deployments can be addressed. Many assignments provide a child with unique and exciting opportunities for travel and education. The quality of schools on base is generally good; those overseas and many in the United States are run by a federal agency, the Department of Defense Education Activity (DoDEA). In addition, most military installations have excellent recreational facilities and an active Dependent Youth Activities program. Good day-care facilities generally are available for those with normal duty hours (and sometimes those with unusual hours, as well. For each SM newly assigned to the base, a military sponsor usually is appointed who can assist with information about the community, housing, and schools. And finally, travel to other states and countries is an opportunity for learning and enrichment that most children just don’t have.
If the case involves a move overseas by a military parent who has custody and you represent the other parent who opposes the move, gather as many facts as possible and use them in your questions at trial to enlighten the court on just how difficult it will be for the military–parent to exercise custody. Initiate discovery right away and take the other side’s deposition. Get the dates and times, duties, and details necessary to conduct a competent cross-examination.
There is no substitute for the truth, especially when it comes to hard facts about custody, care, and military duties. Insist that your clients tell the judge the complete, unvarnished truth about the military assignment and duties, and then follow up with questions about how the child will deal with the moves, dislocations, and emergencies that inevitably will occur in military life. Such a candid approach may gain grudging admiration from the judge, who may view the witness as a good parent who is trying hard, under difficult circumstances, to care for the child.
Gathering evidence is essential in making a military parent’s case for custody. Visit the Web site of the SM’s military base to obtain accurate information about Dependent Youth Activities, recreation, on-base schools, churches, shopping, and so on. If you can, visit the base, obtain handouts and pamphlets regarding the activities and facilities, and take pictures. Consider posing your client in a few of the pictures with the school or fitness facility in the background. Ask recreation facility or day-care personnel to testify in court.
Plan for visitations over long distances, even if the parties are both “local” at the start of the case. Draft two visitation schedules, one local and the other long-distance. The local one can be “every other weekend Friday to Sunday” or whatever local practice suggests. The long-distance one should provide for several weeks’ visitation in the summer and a week or two at Christmas, where appropriate. Also specify who pays for airline tickets, how they are conveyed to the custodial parent, and how a child who cannot travel alone will be transported to the noncustodial parent’s residence for visitation.
Make sure that parents share the work of visitation planning. It’s all too easy to spend tons of money having the attorney find out about flight logistics and “companion policies.” Put this burden, if appropriate, on the shoulders of your client. Ask him or her to search the Internet or call the airlines to find out when children may fly unaccompanied, and any charges incurred when a flight attendant must accompany the child. Usually the client will appreciate the opportunity to do part of the work, especially if it results in reduced legal fees.
Due to the mobility of military personnel, enforcement of visitation and remedies for removal are frequent issues for SM and nonmilitary parents. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides enhanced protections for rights of access. Under § 304(a)(1), a court can issue a temporary order enforcing visitation granted by the court of another state (a visitation schedule or the visitation provisions of a custody decree).
Section 310 of the UCCJEA provides a speedy enforcement mechanism for the prompt recovery of a child wrongfully taken or kept outside the original decree state. When a verified application alleges that a child is likely to suffer serious immi-
nent physical harm or removal from the state, the court may issue a warrant to take physical custody of the child. Expedited hearings are available in such matters.
Remember that while military attorneys are available to advise servicemembers on family care plans, these (JAG officers) usually are not licensed in the state where the SM–parent is assigned nor in the SM’s state of domicile. They often are just out of law school, with perhaps two months of basic JAG officer training at the appropriate service’s JAG school, which offers at most a few hours on domestic relations. Some have never taken a course in family law, and many legal assistance attorneys learn what to do by mentoring with senior lawyers in the legal assistance office, as well as through on-the-job training. For these reasons, give particular care and attention to the family care plan if you are the private practitioner who is advising a SM–parent.
The most persistent legal mistake in family care plans is designating as caretaker or custodian for the child someone other than the child’s other parent. Such an exclusion from custody upon mobilization or deployment may lead to unnecessary litigation and increased legal fees for everyone. Whenever possible, insist that your client include the other parent in his or her family care plan. If the other parent declines or is unable to serve as back-up custodian, protect the servicemember–custodian by stating the noncustodial parent’s position in the court order. To ensure the court’s ability to order compliance, make the other parent a party to the lawsuit.
Carefully advise the SM–parent about the need for family care plan decisions regarding death, as well as mobilization; someone should be appointed to care for the child upon the death of the SM–parent. Pay close attention to the laws exercising “home state” or continuing jurisdiction over custody of the child. Sometimes the state will allow a new spouse to be designated as guardian of the estate of the minor child but not as physical custodian.
Many on-base primary and secondary schools for military dependent children are run by the DoDEA. Parents or legal guardians of a student may have access to the student’s academic records, disciplinary files, and other student information without regard to the custody arrangement, unless the divorce decree or court-approved parenting plan states that such access should be limited or that the noncustodial parent is denied access to the child. See “Student Records and Transcript Request Procedures” at the DoDEA Web site, www.odedodea.edu.
The best course of action for the requesting party is to contact the school, speak with the school administrator, and provide the following information:
Filing for custody overseas may, if certain conditions are met, result in a custody order that is valid and binding in the United States. To avoid unnecessary Hague Convention litigation, obtain proof of consent by the other parent. This is a defense under Article 13(a) of the Convention.
If it is not desirable or practical to obtain the consent of the other parent, there are other options. Although the removing party may want a “quick exit” from the foreign country, it sometimes is advisable to file a lawsuit requesting custody in that country. In this way the exit, if not quick, will at least be clean. A favorable court order in the foreign nation would entitle the parent to full custody and care of the child and to make provisions to return the child to the United States at the appropriate time.
Whenever advising a client—military or nonmilitary—about the removal of a child from overseas where the other side may have a claim of “habitual residence,” be sure to:
Don’t be shy about getting help in custody cases involving a military servicemember, especially if the help is free. Partnering with a JAG officer, stateside or overseas, is the sensible thing to do when trying to obtain the return of a missing child. Contact the nearest military base and ask to speak with a legal assistance attorney.
The military custody case can be difficult and time-consuming. Seeking help from knowledgeable co-counsel can ease the burden, and getting advice from a JAG officer is one way to accomplish that. Numerous stumbling blocks should be avoided, whether you represent the custodial or the noncustodial parent, the one in the armed services or the nonmilitary parent. Take your time, develop the facts, plan on spending a lot of research time getting “up to speed” in this complicated area, and don't be afraid to reach out for help from your colleagues.
Obtaining health records sometimes is necessary in a custody case. There is nothing unique about obtaining medical information from a military medical treatment facility (MMTF). It too is governed by HIPAA when disclosure is voluntary. The primary legal references regarding release of medical information are the following:
When the Army is involved, see also Army Reg. AR 40-400, Patient Administration, and AR 27-40, Litigation.
When negotiating and drafting initial custody orders or separation agreements, use the following language after the appropriate findings of fact and the usual conclusions of law regarding fitness and best interest of the child to designate the military parent as custodian.
Since Jane Doe is a member of the U.S. Navy and may be deployed in the future on an unaccompanied tour (that is, an assignment where family members are not allowed), her former husband, John Doe, is hereby designated alternate custodian of Jack Doe, the minor child of the parties, in such an event. He shall hold and exercise all the rights and responsibilities of a custodial parent during such a deployment and shall promptly return the child to Jane Doe at the deployment’s end.
Some parents want to provide an additional alternate custodian in case the primary alternate cannot or will not assume custody. Following is such a clause and would be added at the end of the above clause:
The following clause may prevent an interstate custody battle. It is strongly recommended that, in the event of mobilization or deployment of the custodial parent, a court order be entered to effect the transfer of custody of a minor child; a written agreement is not enough. Although one cannot confer jurisdiction by consent, the parties can stipulate to transience to avoid one parent’s taking advantage of the situation. One also can save time and avoid “changed minds” by stipulating to the parties’ understanding and intentions, which are often critical issues in determining the temporary or permanent nature of a child’s stay with a parent in another state.
Servicemembers should pay particular attention to the possibility of a motion to transfer the custody case to another state when the original decree state is alleged to be an inconvenient forum. This will occur most frequently when the servicemember is no longer present in the decree state and the other parent has moved. To prevent a motion allowing the court to decline to exercise jurisdiction consider:
The parties acknowledge that the following circumstances may occur and will not be considered a substantial change of circumstances sufficient to transfer the custody case to another state under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or to modify custody or visitation:
– the remarriage of either party;
– the Navy’s reassignment of John Doe;
– the transfer of Mary Doe in connection with her current employer, IBM, or any subsequent employer; and
– the attendance of Johnny Doe, the parties’ minor child, at a school outside East Virginia.
This clause may not prevent a determined judge from allowing a change of venue or of custody, but it certainly will narrow the scope of the inquiry and may protect the nonmoving party.
Mark E. Sullivan is a retired Army Reserve JAG colonel who practices with Sullivan & Grace, P.A., in Raleigh, NC. He is a board-certified specialist in family law and past president of the North Carolina Chapter of the American Academy of Matrimonial Lawyers. He is currently chair of the Military Committee of the ABA Section of Family Law. This article is adapted from the military custody chapter of his book, The Military Divorce Handbook (Fall 2005), ABA Section of Family Law.
Published in Family Advocate, Volume 28, No. 2, Fall 2005. © 2005 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.