A fiscal year 2014 defense authorization agreement reached this month by the Armed Services Committees in the House and Senate includes language supported by the ABA’s policy regarding child custody cases involving a parent who is a member of the military.
The agreement, which passed by the House Dec. 12 by a 350-69 vote under suspension of the rules as an amendment to H.R. 3304, includes some provisions from separate defense authorization bills passed by the House and approved by the Senate Armed Forces Committee earlier this year. The House passed its bill, H.R. 1960, in June; the Senate failed to invoke cloture on its bill, S. 1197, in November. The new agreement, which is expected to clear the Senate before the holiday recess, would authorize $632.8 billion for the military and defense-related programs.
The child custody language expresses the sense of Congress that state courts should not consider military deployment as the sole factor in determining child custody in state court proceedings involving a parent who is a member of the armed forces. The agreement did not include provisions opposed by the ABA that have been part of the past six House versions of proposed defense authorization legislation. Those provisions would have amended Title II of the Servicemembers’ Civil Relief Act (SCRA) to require a court that has 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 ABA opposes the provisions because the association maintains that they would open the federal courthouse doors to military child custody cases and unnecessarily create uncertainty and extraordinary expense for military members and their families. In correspondence last year to Congress, then ABA President Wm. T. (Bill) Robinson III explained that each attempt to seek federal jurisdiction in a custody case, such as appealing the application of the law, would delay final resolution by months and potentially create a changing body of law affecting custody laws in every state.
Calling the federal proposal an “unwarranted intrusion in matters best reserved to the states,” Robinson said that more than 40 states have enacted legal protections in military child custody cases and that the SCRA currently provides military parents protections in harmony with state laws without federal legislation. In addition, the Uniform Law Commission is urging approval of a comprehensive package of state protections even in states that have existing protections.
In another area of concern to the ABA, the agreement does not include provisions supported by the association that would have allowed Guantanamo Bay detainees to be transferred to the United States for trial in federal court.
The ABA urged the Senate last month to retain Guantanamo transfer provisions that were part of S. 1197. The provisions, which survived attempts to remove them from the bill during debate last month on the Senate floor, would have amended the blanket restriction in effect since 2010 that forecloses civilian court prosecutions of Guantanamo detainees by prohibiting the use of Department of Defense (DoD) funds to transfer detainees to the United States for any purpose. The provisions would have allowed the secretary of Defense to waive the prohibition if certain conditions were met.
In a Nov. 18 letter to all senators, ABA President James R. Silkenat emphasized that “the federal courts are well equipped to handle terrorism trials no matter how complex” and that “it is in our national interest to permit determinations regarding the best venue to prosecuting alleged terrorists detained at Guantanamo Bay to be made on a case-by-case basis.”
The agreement does include provisions allowing the secretary of Defense to authorize transfers of detainees to foreign countries if a Periodic Review Board determined that the detainee is no longer a threat to U.S. security or if the transfer has been ordered by a court.
In addition, the secretary would be allowed to authorize other Guantanamo transfers overseas after determining that a transfer would be in the national security interests of the United States and that steps have been taken to mitigate the risk that a detainee would re-engage in terrorist activities.
Other major provisions in the bill include more than 30 provisions to reform the way the military handles sexual assault cases, including providing special victims’ counsels – specially trained lawyers in each of the services – to provide legal assistance to victims of sex-related offenses.