Uniform Act Could Benefit Deployed Military Parents
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For her article
on this act, Kristin M. Hall, Associated Press, interviewed Fathers and Families member Navy Petty Officer 2nd Class John Moreno. |
By Rita Fuerst Adams, National Executive Director,Fathers and Families
“With deployments on the rise from the first Gulf War through the Iraq and Afghanistan wars, especially for National Guard and Reserve members, a majority of the states have implemented a patchwork of laws designed to protect service members in child custody and visitation cases. But the rules aren't consistent across the country,” says Eric Fish, legal counsel for the Uniform Law Commission.
The Uniform Law Commission approved a new act recently at its 121st Annual Meeting in Nashville, Tennessee. The Uniform Deployed Parents Custody and Visitation Act, addresses issues of child custody and visitation that arise when parents are deployed in the military or other national service. The deployment of a custodial parent raises custody issues that are not adequately dealt with in the law of most states. In many instances, deployment will be sudden, making it difficult to resolve custody issues before the deployment by ordinary child custody procedures. The Commission determined that there is a need to ensure that parents who serve their country are not penalized for their service, while still giving adequate weight to the interests of the other parent, and most importantly, the best interest of the child.
The Uniform Law Commission comprises more than 350 practicing lawyers, governmental lawyers, judges, law professors, and lawyer-legislators from every state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands. Commissioners are appointed by their states to draft and promote enactment of uniform laws that are designed to solve problems common to all the states. Since its inception in 1892, the Uniform Law Commission has been responsible for more than 200 acts, among them such bulwarks of state statutory law as the Uniform Commercial Code, the Uniform Probate Code, and the Uniform Partnership Act.
Currently, there is considerable variation in how courts approach custody issues on a parent’s deployment. Many courts will grant custody to the other natural parent for the duration of the deployment, even over the wishes of the deploying parent; some courts, however, will grant custody to the person that the service member wishes to designate as custodian, such as a grandparent.
Some of the issues state courts have struggled with include how to determine jurisdiction when a military member is assigned to a base in another state, whether a step-parent or grandparent can have visitation rights when a parent is deployed, and whether a temporary custody arrangement should be made permanent when a parent returns from deployment.
Fathers and Families has been at the forefront of this issue, successfully working to pass military parent legislation in dozens of states, including Arizona, California, Indiana, Ohio, and Texas. This is the current summary of the State Child Custody Laws Related to Mobilization. Fathers and Families is pleased the Uniform Laws Commission is seeking a uniform solution to military child custody issues.
One of the key points of the new act provides that the absence of a military parent from a state will not be used to deprive that state of jurisdiction over the custody or visitation proceeding. By providing that the deploying parent’s residence will not be deemed changed on account of the deployment, the Uniform Deployed Parents Custody and Visitation Act allows states that have entered existing child custody orders, either permanent or temporary, to most often retain jurisdiction during deployment even if the nondeploying parent and child were to leave the state during the service member’s deployment.
The drafting committee on the Uniform Deployed Parents Custody and Visitation Act was chaired by Paul M. Kurtz of Athens, Georgia. Other committee members included:
- Barbara A. Atwood, Tucson, Arizona
- Effie Bean Cozart, Memphis, Tennessee
- Lorie Fowlke, Provo, Utah
- Kay Kindred, Las Vegas, Nevada
- Debra H. Lehrmann, Austin, Texas
- Bradley Myers, Grand Forks, North Dakota
- Thomas C. Owens, Overland Park, Kansas
- Anne H. Reigle, Dover, Delaware
- Ken Takayama, Honolulu, Hawaii
The Uniform Laws Commission will be introducing this Act in state legislators starting in 2013.
Last State to Adopt the Uniform Child Custody Jurisdiction Enforcement Act
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Senator Cynthia Stone Creem |
By Rita Fuerst Adams, National Executive Director, Fathers and Families
The Uniform Child Custody Jurisdiction and Enforcement Act is an act designed to make uniform a series of family laws throughout the country. The National Conference on Uniform State Laws drafted the Act in 1997 to replace an act that was nearly 30 years old. It was up to each individual state to adopt the Act and all, except Massachusetts, have done so.
The law aims to deter interstate parental abductions and to establish uniform laws regarding child custody, visitation rights, jurisdiction, and enforcement. There are four basic grounds for a court to have jurisdiction to make an initial child custody or visitation order:
- Home state – where a child has been for at least six months prior to the legal action; priority is given to the child’s home state.
- Significant connection – where a child has significant ties to a state and that state has substantial evidence concerning the child.
- More appropriate forum – such a jurisdiction exists when both the home state and the significant connection state decline jurisdiction in favor of another state that is more convenient.
- Vacuum jurisdiction – if no court meets the above three standards, another court may step in and rule on the initial custody proceeding.
The court and state that originally had jurisdiction will continue to do so unless: (1) the original court loses its significant connection jurisdiction, or (2) the child, his or her parents, and any person acting as the child’s parent are no longer living in the state.
In 2001, the Massachusetts Bar Association's Family Law Legislation Practice Group began debating the Uniform Child Custody Jurisdiction and Enforcement Act.
The proposed Massachusetts version provides that Massachusetts has continuing exclusive jurisdiction over its orders until:
- The child no longer has a significant connection with the state and substantial evidence is no longer available in the state; or
- Neither the child nor a parent, nor any person acting as a parent resides in the state; or
- The court finds that a parent or person acting as a parent has engaged in a serious incident or pattern of abuse against the other parent or person acting as a parent or the child.27
This revised version of the Act, S713, was sponsored by Senator Cynthia Stone Creem. It received a favorable report by the Judiciary Committee and, as of July 31, 2012, it was still in the Judiciary Committee. |
