Child Custody May Get Easier for US Service Members

In 2007, Navy Petty Officer 2nd Class John Moreno was deployed, leaving his pregnant wife behind in Virginia. When he returned, he found his wife had taken their then seven-month-old daughter, Vanessa, to Arizona and refused to let Moreno see the child. A Virginia judge (where Vanessa was born) declined jurisdiction and would not order the wife to return Moreno's daughter because Moreno's military orders were to leave Virginia. Justifiably, Moreno feels like he has fewer legal rights because of his military service.

Unfortunately, Petty Officer 2nd Class Moreno's situation is not uncommon. Child custody issues arise anytime a custodial parent is deployed. Deployment often happens without much notice, leaving parents with little time to resolve custody matters in state courts, which address family law issues. To make things more difficult, state laws are all too often not crafted well enough to protect the deployed parent's rights. The end result is that many parents are in effect penalized for their service to our country.

Many states have laws addressing custody during military service, but these statutes vary greatly from state to state, creating an inconsistent patchwork of laws across the country. Some states' laws are favorable to the rights of deployed parents, while others cut them off completely.

For example, some states will allow the service member to designate another person as a custodian during the deployment, while many states' courts automatically give custody to the other parent, even over the deployed parent's objection. The diversity of state laws is concerning considering service members often move between states as part of their military assignments.

The Uniform Deployed Parents Custody and Visitation Act

To address this issue, the Uniform Law Commission, or ULC, proposed the Uniform Deployed Parents Custody and Visitation Act, or UDPCVA for short, a set of standardized statutes for states to enact that will address some of the concerns discussed above. The ULC is a national legal panel of some 350 attorneys appointed from every state to provide "states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law."

The ULC drafted the UDPCVA to deal with general custody issues service members face, with specific provisions addressing deployment. One of the UDPCVA's main goals is to ensure that a parent's absence from the state due to military service cannot be used against that parent and cannot be used to divest the state of jurisdiction over the custody and visitation issues. Such a law would have allowed the state of Virginia, in Petty Officer 2nd Class John Moreno's situation, to maintain jurisdiction over his case even though his wife had taken their child to Arizona.

Competing Federal Legislation

Service members do enjoy certain rights under the federal Servicemembers Civil Relief Act such as the suspension of certain judicial proceedings during their military service. For the last seven years, the U.S. House of Representatives has passed federal legislation that has stalled in the Senate every time. The bill would amend the Servicemembers Civil Relief Act to include additional protections in child custody cases, similar to those in the UDPCVA.

The ULC opposes the federal proposal. Eric Fish, ULC's legal counsel, argues that family law is an issue of states' rights and any legislation should remain on the state level. Additionally, Fish believes the federal legislation is vague and would cause confusion as to whether a state or federal court could hear a child custody case.

Family law and child custody cases are already difficult areas of the law. Combining those issues with the unique circumstances of military service creates a highly complex situation. If you or a loved one serves in the military and is facing child custody challenges, contact an experienced family law attorney to discuss your situation and your options.