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June 01, 2012

ABA opposes child custody provisions in House DoD bill

ABA President Wm. T. (Bill) Robinson III expressed the ABA’s opposition last month to military child custody provisions in H.R. 4310, defense authorization legislation that passed the House May 18.

Section 564 of the legislation, according to Robinson, would amend Title II of the Servicemembers’ Civil Relief Act (SCRA) to “open the federal courthouse doors to military child custody cases, creating uncertainty and extraordinary expense for military members and the families.” The provision would require a court that issued a temporary custody order based solely on the deployment or anticipated deployment of a servicemember to reinstate, upon return of the servicemember, the custody order that was in effect immediately preceding the temporary order unless it is not in the best interest of the child. The provisions also would prevent a court from using deployment or the possibility of deployment against a servicemember when determining the best interest of the child.

Robinson, writing to Senate Armed Services Committee Chair Carl Levin (D-Mich.) and Ranking Member John McCain (R-Ariz.), explained that each attempt to seek federal jurisdiction in a custody case would delay final resolution by months and potentially create a changing body of law affecting custody laws in every state. He added that parties to these emotionally charged cases can be counted on to exploit any potential loophole, practically ensuring high-conflict litigation in the courts with the least experience or services to handle such cases.

Robinson said that more than 40 states have enacted legal protections for military child custody cases, and he called the federal legislation an “unwarranted intrusion into matters best reserved to the states.” The SCRA currently provides military parents protections in harmony with state laws without federal litigation. The act prevents any permanent change in parental rights until a reasonable time following an absent servicemember’s return, and only the best interests of a child would prevent a child’s return to the military parent.

Next month the Uniform Law Commission will release a comprehensive Deployed Parents Visitation and Custody Act that will be circulated to all of the states for consideration.

In conclusion, Robinson emphasized that ABA policy supports state laws providing that military service alone, including deployment or the threat of deployment may not be used to permanently deny custody to a military parent or to change parental custodial rights. “These custody rights can best be assured by state laws enforced in state courts that are already equipped to provide the protections needed,” he wrote. 

Other organizations that support strong legal protections for military servicemembers and oppose Section 564 include the National Governors Association, the National Military Family Association, the Conference of Chief Justices and State Court Administrators, the Adjutants General Association of the United States, the American Academy of Matrimonial Lawyers, the National Council of Juvenile and Family Court Judges, the Uniform Law Commission, and many state bar associations. 

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