This past week, the “Servicemember Family Protection Act” passed the U.S. House of Representatives on a 390-2 vote, passing over to the Senate. The bill has been promoted by Ohio Representative Michael Turner (OH-3) as a way to protect servicemembers from the harsh and unfair actions of non-servicemember parents to deprive the servicemember of their parental rights. No one wants to deprive our servicemember’s of their parental rights or deny their children appropriate parental contact during or after the servicemember returns from deployment.

But there’s a problem. The Servicemember Family Protection Act doesn’t do that.

First, there are no reported cases denying servicemembers custody due to deployment. Nor are there any reported cases documenting incidents in which a servicemember has lost his or her custody rights upon return from deployment for that reason. An American Bar Association White Paper on the bill reports that in the spring of 2010, the U.S. Defense Department found, after an exhaustive survey of reported cases, that there are NO cases where a servicemember lost custody solely due to deployment.

The determination of child custody and parenting time issues has always been the province of the states. Federal courts have vigorously avoided any involvement in child custody matters, directing decisions on those issues to the states because of the states’ courts unique and historical interest in those issues. Child custody cases are decided by judges in all states under the “best interests of the child” standard. Although defined slightly differently in each state, the “best interest” standard holds that every case must be decided on its individual facts based upon an examination of all the family’s circumstances towards a decision that will best serve the child rather than either parent.

But the Servicemember Family Protection Act takes the simplistic view that in every case in which a parent is deployed no matter how long that deployment, a court should never be allowed to consider the child’s best interests and determine that the child should remain in the care of the non-servicemember parent or that the parenting time should not change in some way because of the perhaps long period of absence. Instead, the bill mandates that, “the custody order that was in effect immediately preceding the temporary order shall be reinstated.”

But how does an automatic termination of a temporary custodial change consider the best interests of the child? What if the child has become settled in a new environment? What if the child is in the middle of the school year in another school district or another city or state? What if the original custody order did not truly consider the child’s best interests, but was made as an accommodation of circumstances that existed at the time the custody arrangement was originally made that have completely changed in the interim? What if the child and the non-servicemember parent have formed a different bond than they had before the servicemembers deployment that did not exist before the child changed residence from the servicemembers home? What if upon returning from deployment the servicemember chooses to locate to a different place than the servicemember lived before deployment?

Added to this problem is the fact that already 29 states have in place similar or better protections for servicemembers residing in those states – with a new uniform act proposed by the Uniform Laws Commission to provide standards and procedures for resolving visitation and custody issues affecting military personnel and their families, including the resolution of matters in intrastate, interstate, and international contexts. See Uniform Deployed Parents Visitation and Custody Act.

The Servicemember Family Protection Act is, instead, an attempt at election year politics seeking to use the heartfelt and emotional fears of our military families for partisan gain. “Congress should not place a roadblock in the path of states’ abilities to craft strong and creative protections.” For more information, please read the American Bar Association’s White Paper on Federal Military Custody Issues.

HR 4201 EH

112th CONGRESS2d SessionH. R. 4201 

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AN ACTTo amend the Servicemembers Civil Relief Act to provide for the protection of child custody arrangements for parents who are members of the Armed Forces.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Servicemember Family Protection Act’.

SEC. 2. PROTECTION OF CHILD CUSTODY ARRANGEMENTS FOR PARENTS WHO ARE MEMBERS OF THE ARMED FORCES.

(a) Child Custody Protection- Title II of the Servicemembers Civil Relief Act (50 U.S.C. App. 521 et seq.) is amended by adding at the end the following new section:

‘SEC. 208. CHILD CUSTODY PROTECTION.

‘(a) Restriction on Temporary Custody Order- If a court renders a temporary order for custodial responsibility for a child based solely on a deployment or anticipated deployment of a parent who is a servicemember, then the court shall require that upon the return of the servicemember from deployment, the custody order that was in effect immediately preceding the temporary order shall be reinstated, unless the court finds that such a reinstatement is not in the best interest of the child, except that any such finding shall be subject to subsection (b).

‘(b) Exclusion of Military Service From Determination of Child’s Best Interest- If a motion or a petition is filed seeking a permanent order to modify the custody of the child of a servicemember, no court may consider the absence of the servicemember by reason of deployment, or the possibility of deployment, in determining the best interest of the child.

‘(c) No Federal Right of Action- Nothing in this section shall create a Federal right of action.

‘(d) Preemption- In any case where State law applicable to a child custody proceeding involving a temporary order as contemplated in this section provides a higher standard of protection to the rights of the parent who is a deploying servicemember than the rights provided under this section with respect to such temporary order, the appropriate court shall apply the higher State standard.

‘(e) Deployment Defined- In this section, the term ‘deployment’ means the movement or mobilization of a servicemember for a period of longer than 60 days and not longer than 18 months pursuant to temporary or permanent official orders–

‘(1) that are designated as unaccompanied;

‘(2) for which dependent travel is not authorized; or

‘(3) that otherwise do not permit the movement of family members to that location.’.

(b) Clerical Amendment- The table of contents in section 1(b) of such Act is amended by adding at the end of the items relating to title II the following new item:

‘208. Child custody protection.’.

Passed the House of Representatives May 30, 2012.

Attest:

Clerk.

112th CONGRESS2d SessionH. R. 4201AN ACTTo amend the Servicemembers Civil Relief Act to provide for the protection of child custody arrangements for parents who are members of the Armed Forces.