The Uniform Deployed Parent Custody and Visitation Act is a vast step forward in providing standard steps, rights and procedure to use when a military parent leaves on unaccompanied military business, and states should give serious consideration to its passage.
By Mark E. Sullivan, Family Lawyer
With widespread military forces around the world, especially in Afghanistan, Iraq and Kuwait, America’s military places unique challenges before the men and women in uniform who make up the Army, Navy, Air Force, Marine Corps and Coast Guard. A high operational tempo means stress at home and less time for families. As a result, divorce rates in the uniformed services are higher than the general population.
Mobilizations, TDY (temporary duty), deployments and remote assignments can take their toll on the judges who handle custody cases, as well as the parents who are parties to the lawsuit. It often appears that there are no clear rules to guide them when a family separation arises and there is a dispute over the care of children.
The single biggest area of change in family law in the last ten years has been the movement among states to enact legislation protecting the rights of servicemembers (SMs) and their children in custody and visitation matters. There are a growing number of laws and cases dealing with custody jurisdiction in the event of deployment, delegated visitation rights, communications with the child during deployment, expedited hearings and electronic evidence and testimony in court. And in a few states, there has been total inaction.
When the Uniform Law Commission met in Nashville in July, 2012, it passed and published the newest tool for dealing with deployment and custody. The ULC adopted the latest in a series of “uniform laws” which serve as models for state legislation. This one is the Uniform Deployed Parents Custody and Visitation Act. It may be found here.
The UDPCVA adopted the best provisions found in the state court decisions and state statutes, fine-tuned them, and bundled them into a single act. State bar family law sections and legislators are already looking it over and seeing if it would be a “good fit” for their own courts and military populations. This article explains what the Act does, why it was written and what protections it provides in the complex world of military custody and visitation.
The Uniform Law Commission
The ULC is an assembly of about 350 commissioners that are appointed by the states to draft legislation. About two years ago, a committee of the ULC began meeting to address a mounting problem in a mobile military population - the provisions for custody, visitation and decision-making when one parent is absent due to military duties. The issues with which judges, lawyers and parents have struggled include substitute visitation by step-parents and grandparents during deployment, consideration of military service as a factor in custody determinations, and whether a temporary custody order can or should be made permanent when a parent comes back from a military absence, such as a deployment.
"States have been doing a great job in proposing and passing laws dealing with military personnel and custody, but they’re just all over the board on what the laws contain,” says Jim Higdon, a San Antonio family lawyer and the ABA’s delegate to the ULC committee which wrote the UDPCVA. “There’s no consistency or uniformity in state statutes, and this can be a real problem for military members and their families. What we had to do is gather the best provisions from state codes – from Alaska to Florida, from Hawaii to Georgia and Louisiana – and then assemble them into a really great model act for the states to consider passing.”
Tales from the Trenches
Want to know what’s happening in the “home front” battles involving military custody? No better answer can be given than a recent case involving Colorado and Maryland involving a custodial parent who was “called to the colors.”
The mother, who had a Maryland custody order, was mobilized and sent to Texas on active duty and then deployed overseas. After a battle between state court trial judges, the Colorado Supreme Court issued a show cause order to suspend a trial judge’s decision to take over custody jurisdiction. The case isIn re Marriage of Brandt, 268 P.3d 406 (Colo. 2012), decided January 23, 2012.
The military mother and the daughter had lived in Maryland after the parties’ divorce; she later entered the Army Nurse Corps while living in Maryland. She and the daughter moved to Ft. Hood, Texas for a year, and then she was deployed to Iraq for six months. Upon her return to Texas, the mother was ordered back to Maryland for a non-deployable assignment.
In accord with the Army’s rules and her own Family Care Plan, the mother turned over custody to her ex-husband in Colorado. When she returned to the States, the parties agreed that the child would stay in Colorado for the next seven months to finish the school year, ending in May 2011. It was in May 2011 that the father filed in Colorado for the court to assume custody jurisdiction, since neither mother nor child “currently resided” in Colorado. He also filed a motion to change custody. The trial judge agreed with the father and issued an order assuming jurisdiction.
Pursuant to the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), the judges from Maryland and Colorado conferred about custody jurisdiction by telephone. But they could not agree. Each one maintained that his state was properly exercising jurisdiction.
The mother filed for an extraordinary writ in the Colorado Supreme Court. She asked that Court to grant an order for show cause – which it did – arguing that the district court erred in finding that she no longer resided in Maryland for custody jurisdiction purposes.
The Colorado Supreme Court disagreed with the trial judge’s custody jurisdiction ruling, stating that the phrase “presently reside” in the UCCJEA is not the same as “currently reside” or “physical presence,” and that the judge must make an inquiry into the totality of the circumstances, examining what makes up a person’s permanent home, her domicile. The Court further held that the parent who claims that the initial state has lost “exclusive, continuing jurisdiction” has the burden of proof in showing this before the trial judge. Accordingly, the Court reversed and vacated the district’s judge’s order assuming jurisdiction. In its final remarks, the Supreme Court of Colorado stated:
"…[The trial court’s] order assuming jurisdiction to modify Maryland's custody decree cannot stand because that order appears to be based solely on Christine Brandt being out of Maryland on military assignment. The UCCJEA provision allowing Colorado to divest Maryland of jurisdiction based on where the parties "presently reside" should not be interpreted to allow one parent to re-litigate the issue of custody simply by winning the race to the courthouse when the other parent is absent from the issuing state."
Other States, Other Cases
In a series of visitation cases, military parents have fought to keep contact through their new spouses or their parents when the children are denied such access by the children’s mothers. In such cases, courts have found that the court can delegate or assign visitation rights to family members during a deployment. In each of these cases, the non-military parents have objected to attempts to involve the rest of the SM’s family in substitute visitation, have argued that visitation is a personal right which belongs only to the deployed parent, and have claimed that when the SM is absent there are no visitation rights available. Such assertions have been rejected in favor of “substitute visitation” in Webb v. Webb, 148 P. 3d 1267 (Ida. 2006); Settle v. Galloway, 682 So. 2d 1032 (Miss. 1996); In re Marriage of DePalma, 176 P.3d 829 (Colo. App. 2008); In re Marriage of Sullivan, 342 Ill. App. 3d 560, 795 N.E. 2d 392 (2003); and McQuinn v. McQuinn, 866 So. 2d 570 (Ala. Civ. App. 2003).
The issues in military visitation and custody cases have even led one Congressman, Rep. Michael Turner of Ohio, to introduce a bill in Congress on military custody. The proposal would amend the Servicemembers Civil Relief Act to include protections for deployed servicemembers in child visitation and custody cases. Says Jim Higdon, the San Antonio family lawyer, “This is just so wrong. We don’t need custody protections in the U.S. Code. We need a good set of protections for military families in the place where these ought to be, the statutes of the states.”
John Camp, a family law attorney from Warner Robins, Georgia, adds, "Military personnel will find that they’re completely lost. They’ll hear about this federal law, and they won’t know which court to go to, where relief is to be found.” This points up the lack of uniformity in the state statutes. While Georgia, due to diligent drafting by Mr. Camp, has an excellent law, it varies widely from North Carolina, which has a good statute, and Delaware, which has little on the books. “The UDPCVA is the approach we need, one which allows the states to continue to handle custody matters and to protect those in service and their children, without creating an overarching federal system that is just going to confuse child custody matters," Camp stated. Most family law practitioners agree with that approach.
Military Absence and Custody
One of the key points of Uniform Deployed Parent Custody and Visitation Act is the issue of “military absence,” such as deployment, unaccompanied tours of duty, and TDY, and its impact on the court’s jurisdiction. 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.
In most family law cases, a parent’s move is a purely voluntarily thing. For servicemembers, however, moves from bases to base and stateside to overseas are not voluntary. They are the product of military orders. Failure to comply is a criminal offense. Such involuntary moves should not also punished the servicemember by the loss of custody jurisdiction.
What About the SCRA?
Some lawyers and legislators cannot understand why any change is needed. Why isn’t the status quo sufficient protection? After all, they claim, there’s always the Servicemembers Civil Relief Act, and that surely that provides enough protections for members of the armed forces.
This is a false claim. The Servicemembers Civil Relief Act[i], or SCRA, only provides procedural protections for the SM. Nothing in the Act gives him or her any substantive rights regarding parental access, joint decision-making, notice of relocation, visitation or primary custody of the children. This federal law was never intended to prescribe rules for legal custody and visitation decisions. It was created to prevent harm to servicemembers, not to create rights for them irrespective of state cases and codes. The issue of custody and visitation rules and rights for military members is solely the province of state law and appellate decisions, not the U.S. Code.
Enter the UDPCVA
The Act is divided into five articles. The first article covers definitions, such as “deploying parent,” “family member” and uniformed service.” It also covers enforcement, attorney fees and a requirement that the residence of a parent not be changed by reason of deployment. Parents are required to provide notice of impending deployment and of address changes during a deployment. A court may not consider a parent’s past deployment or possible future deployment - by itself – in deciding the best interest of the child. The court may, however, consider material effects on the child’s best interest associated with past or future deployments.
Articles 2 and 3 deal with matters that come up upon notice of deployment and during the actual absence, depending on whether the case is resolved by settlement or litigation. The Act encourages parents who wish to settle visitation and custody issues. Where there is a negotiated settlement, Article 2 sets out the substantive terms and procedural protections which cover the agreement. When parents cannot agree, Article 3 states provisions for a court’s resolution of the issues of custody and visitation. It includes terms for electronic testimony (e.g., telephone or internet) and expedited procedures for entry of a temporary custody order during deployment. A permanent custody order cannot be entered before or during deployment absent the consent of the SM. Article 3 also states that the judge may grant substitute visitation and decision-making to a non-parent with a close and substantial relationship with the child if it is in the best interest of the child.
The return from deployment is governed by Article 4. This includes termination of the temporary custody arrangement following the SM’s return, with one set of procedures for mutual agreement to end a temporary custody settlement, another for mutual agreement to terminate a court order for temporary custody, and a third to deal with the situation where a court’s intervention is required.
The final part is Article 5. This contains the effective date provision and a transition provision regarding prior orders for temporary custody entered before the effective date of the Act.
The Uniform Deployed Parent Custody and Visitation Act is a vast step forward in providing standard steps, rights and procedure to use when a military parent leaves on unaccompanied military business. These absences are never easy for single parents in uniform. The Act is a step in the right direction to protect those who protect our freedoms, and states should give serious consideration to passage of this model act.
[i] 50 U.S.C. App. § 501 et seq.
*Prepared by Mark E. Sullivan, a retired Army Reserve colonel, who practices family law in Raleigh, NC and is the author of The Military Divorce Handbook (ABA., 2nd Ed. 2011). He is a Fellow of the AAML and a board-certified specialist in family law. He works with attorneys nationwide as a consultant on military divorce issues. His firm’s website is www.ncfamilylaw.com.