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Tuesday, June 4, 2013

Military Parents and Child Custody: State and Federal Issues

David F. Burrelli
Specialist in Military Manpower Policy

Michael A. Miller
US Air Force Fellow

The increased deployment of servicemembers beginning in 2001 as a result of Operations Enduring and Iraqi Freedom has raised difficult military child custody issues that in some cases potentially affect the welfare of military children as well as servicemembers’ ability to effectively serve their country. Approximately 142,000 members of the Armed Forces (active, Guard, and Reserve) are single custodians of minor children. Temporary duty assignments, mobilization, and deployments to areas that do not allow the military member’s dependent(s) to accompany them require the servicemember to have contingency plans providing for the care and well-being of their dependent(s) to include temporary custody arrangements if necessary. In some instances, custody battles have ensued when the military parent leaves for duty and the other parent decides to file for temporary or permanent custody of the child in the absence of the servicemember. Some servicemembers involved in such child custody cases have expressed concern that family courts in some states are using their military service against them in determining custodial arrangements. The issue addressed in this report is whether a federal child custody law is needed to protect servicemembers’ rights in custodial disputes.

Since 2008, the Congress, led by Representative Michael Turner, has proposed federal military child custody legislation that would establish a national standard for litigating child custody cases in which the custodian is in military service. Although legislative efforts in the House have passed on several occasions (as part of the House version of the National Defense Authorization Act from FY 2008 thru FY 2013) and once as a stand-alone bill by voice vote in 2008 (H.R. 6048), all versions of the proposed legislation have failed to pass in the Senate. At the heart of the legislative debate is the potential conflict between the protection of the rights of servicemembers, which is arguably a federal responsibility, and jurisdiction over child custody issues, which traditionally falls within the purview of the States.

Proponents of federal child custody legislation argue the lack of uniform state laws in the treatment of deployed and deploying military parents complicate child custody matters and that the potential exists for state courts to use a servicemember’s deployment, or potential deployment, against them when making child custody determinations. Those proposing a national standard for determining military child custody cases argue such legislation would eliminate this possibility by prohibiting state courts from using deployment or the possibility of deployment against a servicemember when making child custody determinations. Opponents, however, argue that such legislation encroaches on the historical precedent of a state’s right to adjudicate family law matters, would ultimately place the legal rights of the servicemember above those of the best interest of the child, and is not necessary, given that the Servicemembers Civil Relief Act already protects a servicemember’s rights in child custody proceedings. Nevertheless, both sides of the debate agree that no court should show a bias for a non-deploying parent or a prejudice against a military parent solely because of military service. However, both sides disagree on the extent to which deployment or the threat of deployment plays in determining the best interest of the child which is the ultimate criterion for determining child custody cases.

Congressional interest in federal legislation for military child custody cases stems from Congress’s authority to raise and support the standing armed forces of the U.S. and Congress’s authority to make rules for the Government and regulation of the land and naval Forces as well as to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the Service of the United States.

Date of Report: May 31, 2013
Number of Pages: 41
Order Number: R43091
Price: $29.95

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