Election year wrangling over service members child custody rights

On behalf of Jarrell, Hicks & Waldman, PC posted in Military Family Law on Wednesday, June 13, 2012.

Virginia residents may have heard that the U.S. House has yet again passed legislation that would provide service members with added protections against family courts using a military service member's deployments as a factor in deciding custody issues. The Servicemembers Family Protection Act, which passed the House as a stand-alone bill as well as part of the 2013 fiscal defense authorization bill, has been the quest of five-term Congressman, Representative Mike Turner for several years.

Critics of the legislation argue the bill needlessly creates a right of federal court review in child custody cases involving members of the military. The problems with this, other than the increased legal costs for families, is that custody cases could be heard in front of judges with no experience in family law and could tip the outcome of a custody dispute in favor of the military member rather than that of the best interest of the child.

Representative Turner argues that the bill's language simply takes away the disadvantage of a military member having deployments used against him or her in a custody dispute and does not in any way provide advantages to that service member. A retired Army JAG and attorney who wrote his home state's military and child custody and visitation law, argues the bill does not recognize that once federal rights are created, that right can be enforced in a federal courtroom.

As reported in a previous post, some critics of the bill argue that state courts have already responded to concerns of military members' deployments and reformed child custody laws affecting military families. In fact, 40 states currently have legislation passed that states deployment cannot be used as a sole factor in determining child custody issues.

The Uniform Law Commission plans on introducing model legislation in July of this year that states can use to strengthen its military family law. One author who worked on the model stated that the pending legislation inspired him to work with other family law experts on crafting state-level legislation strong enough to not require federally mandated laws to govern what is traditionally a state's rights issue.

So although the general consensus seems to be that Representative Turner's bill may not pass the Senate, it is still responsible for creating stronger laws that protect the child custody rights of our service members.

Source: The News Tribune, "Military child custody, visitation remain tough political topics," Tom Philpott, June 10, 2012

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