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October 24, 2022 Feature

What You Need to Know about the Uniform Deployed Parents Custody and Visitation Act and Why

Phillip J. Tucker

In July 2012, the National Conference of Commissioners on Uniform State Laws submitted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA or the Act) for approval and recommendation for enactment in all the States at its annual conference in Nashville, Tennessee. It was adopted. The Uniform Law Commission creates “uniform laws” that may serve as models for state legislation. The UDPCVA seeks to protect military parents who are deployed by addressing issues of child custody and visitation that arise due to their deployment in military or other national service. The Act is simply a proposal for legislation; until states adopt it, it is not legally binding. So far, 14 states (and Guam) have enacted the Uniform Deployed Parents Custody and Visitation Act, while several other states have introduced and/or enacted similar legislation supporting deployed parents and their families. However, may other states have enacted similar legislation. See a map illustrating the states that have legislation from the National Conference of State Legislatures.

The Problem

Military deployment and child custody relocation statutes do not play well together. In fact, they are a train wreck because in most family law cases a parent’s move is voluntary (e.g., for family or employment reasons). However, a servicemember’s move (either within the United States or overseas) is not voluntary. It is the product of military orders, and noncompliance can result in criminal prosecution. As Mark E. Sullivan, a family law attorney from Raleigh, North Carolina, noted: “[s]uch involuntary moves should not also punished (sic) the servicemember by the loss of custody jurisdiction.” Mark E. Sullivan, The Uniform Deployed Parent Custody and Visitation Act, Family Lawyer Magazine, Mar. 17, 2020.

To provide a real-world illustration of this problem, Carl O. Graham, a Colorado family law attorney, reported:

A military mother with primary custody (“physical care” in Colorado) over her child, was stationed at Ft Carson, Colorado. The child’s father had weekend parenting time. The mother received orders for a one-year unaccompanied tour to Korea, and despite her best efforts, could not change her orders. While mother was gone, the child lived full-time with his father.

At the end of the year, the mother was unable to return to Fort Carson, and was sent to an army installation in Alabama. Father wanted to keep the child, so refused to let the child move with her to Alabama. Mother filed a motion seeking under Colorado law to relocate the child with her. The judge denied the motion, ruling that under Colorado law (C.R.S. 14-10-129), only the primary residential parent had legal standing to relocate a child. And by going to Korea for a year, the mother had lost her status as custodial parent.

Graham, Carl O., Uniform Deployed Parents Custody & Visitation Act.

This custodial mother, solely by virtue of following military orders, lost custody of her son. The UDPCVA seeks to correct this outcome by focusing on the issue of “military absence,” such as deployment, unaccompanied tours of duty, and TDY, and its impact on the court’s jurisdiction, and providing direction for the entry of interim/temporary orders while deployed. Another and more complicated variation of the problem occurs when the nonmilitary parent (who receives custody of a child due to the custodial parent’s deployment) lives in another state. See, In re Marriage of Brandt, 278 P.3d 268 (Colo. 2012).The Act sets out the standard: the mere absence of a military parent from a state will not be used to deprive that state of custody jurisdiction.

The Solution—UDPCVA

The UDPCVA is made up of five articles that each address the varying issues affecting deployed parents in custody and visitation proceedings.

Article 1 details definitions (such as “deploying parent,” “family member” and “uniformed service”). It creates a requirement that the residence of a parent not be changed by reason of deployment; requires the deploying parent to notify the other parent of the deployment as soon as possible; and prohibits the court from considering past or future deployments, by itself, when making a best interest of the child determination in custody proceedings. The court may, however, consider material effects on the child’s best interest associated with part or future deployments.

The court actually has to have UCCJEA jurisdiction over the child. § 104. The Act applies to a deployment, defined as a mobilization or movement for 90 days - 18 months where family members are not authorized. § 102(8). Note that while this would certainly cover most deployments, the act does not explicitly require that the movement be to a hostile fire zone. Strictly speaking, it would cover any unaccompanied military tour within that duration, so technically it includes regular TDY, or a 1-year tour in Korea.

If there has already been a prior custody order, the deploying parent must advise the other parent of the upcoming deployment within 12 days of receiving orders, unless military duties prevent such notice. § 105. The parents are then to exchange parenting plan proposals as soon as possible thereafter.

Article 2 sets out the procedure for parents to make out-of-court agreements (which is encouraged) as to custody and visitation during deployment. In lieu of a hearing, the parents may reach an agreement as to parenting during the deployment. § 201. Subsection 3 outlines factors the agreement should address, but failure to include them does not invalidate the agreement. The agreement may be submitted to the Court, but there is no requirement to do so.

If the non-deploying parent has no parental responsibilities over the child, including visitation, then no agreement is necessary. The deploying parent can simply designate a third party to care for the child(ren) using a power of attorney (which is part of a family care plan). § 204.

Article 3 allows for expedited proceedings (e.g., electronic testimony or hearing), for parents who do not agree to ensure that a temporary custody order is entered prior to deployment and prohibits a permanent custody arrangement being ordered without the deployed parent’s consent.

At any time after notice of a deployment, either parent may file a motion for interim parenting responsibilities during the deployment in the existing custody case, if any, or by filing a new custody case. § 302. The court is then required to grant an expedited hearing. § 303. From the pandemic practice of law, one could see a zoom hearing being used to accomplish an expedited hearing.

The Act contains guidelines for a hearing:

  1. Existing Order. If there is an existing order or agreement addressing parental responsibilities during a deployment, at a hearing the court is required to enforce it. § 305.
  2. Caretaking Authority. The court may grant caretaking authority to an adult family member or an adult with physical care of the child for at least 182 days. § 306. Caretaking authority “means the right to live with and care for a child on a day-to-day basis” § 102(2).
  3. Limited Contact (visitation) shall be granted to an adult family member or adult with physical care of the child for at least 182 days. § 307.
  4. Child Support may also be addressed by the court. § 310.

In addition to specifying care of the child during the deployment, per § 309 the interim order must also provide for:

  1. Communications between the deploying parent and child(ren) during the deployment;
  2. Liberal contact between the deploying parent and child(ren) during any mid-tour leave; and
  3. Reasonable contact between the deploying parent and the child(ren) between the end of the deployment and expiration of the interim order.

As noted above, this Article provides that a judge may grant substitute visitation and decision-making to a non-parent with a “close and substantial relationship” with the child, if in the best interest of the child. This is a significant option to provide a way for the deployed parent’s immediate and extended family to potentially have access to the child(ren) while the servicemember is deployed.

Article 4 address the return from deployment and establishes several procedures to use for termination of a mutual agreed temporary custody settlement or temporary court order, and another process to address the situation when the parties do not agree and the court must intervene. The Act makes clear that a grant of parenting authority during a deployment is interim only and ends upon return from deployment. § 308. Unless the parties agree otherwise, an interim agreement (§ 401) or interim order (§ 404) expires 35 days after the deploying parent returns. Between the time the deploying parent returns and the interim order or agreement expires, the court shall immediately grant that parent reasonable contact consistent with the parent’s post-deployment leave. § 403.

Article 5 sets out the technical effective date and uniform act language.

A provision of the Servicemembers Civil Relief Act (SCRA) provides similar protection, 50 U.S. Code § 3938, but it lacks the detail of the UDPCVA, and the federal statute specifically provides that if a state statute provides greater protection, then the state statute controls. It is important to note the SCRA provides only procedural protections for the servicemember. The SCRA was never intended to create rights for servicemembers in child custody and visitation cases.

As noted earlier, only 14 states have enacted the UDPCVA. Many others have some variations of the Act. Therefore, it is essential to understand what your state law provides regarding military deployment.

Overall, the UDPCVA gives deploying parent and the involved nondeploying parent helpful guidelines to deal with the often stressful and difficult circumstances presented by deployment and its impact on managing parental responsibilities. Hopefully, by having a working knowledge of what your state law allows, we can be facillitators through this process.

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Phillip J. Tucker joined Doerner, Saunders, Daniel & Anderson, L.L.P. in Oklahoma City, Oklahoma, in 2021 after practicing law for nearly 38 years as a founding partner at a law firm in Edmond, Oklahoma. A frequent author and speaker, he focuses his practices on adoption, ethics, paternity, habeas corpus/writ proceedings, guardianship, military law, guardian ad litem training, trial advocacy, and law practice management.