Deciding child custody can be challenging enough, but when one of the parents is on active duty in the military it can add another layer of difficulty to this emotional dispute. Parents should not have to choose between their duty to serve their country and their desire to participate in the upbringing of their child, but the way some custody laws and rulings are structured, that may become the case. In custody cases that involve an active duty military parent, the court is often placed in the awkward position of trying to strike a balance between the best interest of the child, the interests of the military parent and that of the civilian parent.
Special legal protections for military parents
The Service Members Civil Relief Act (SCRA) is a federal law designed to protect the rights of military members in court proceedings. Under this law, the service member can request a 90-day delay for court proceedings in order to give them time to respond. However, there are occasions when the court can rule regardless of the SCRA when the child’s needs are at stake.
Given that child custody cases follow state law, each state has its own statutes and approaches to dealing with decisions of child custody as they relate to the needs of the deploying parent. To solve the issue of the vast variability when it comes to how deploying parents are treated during custody considerations, the Uniform Law Commission developed the Uniform Deployed Parents Custody and Visitation Act of 2012 (UDPCVA). If adopted across the country, the UDPCVA would ensure that in custody cases involving deploying members of the military, a judge may not consider the past or future deployments of the parent as the only criteria in deciding what is in the best interest of the child.
The UDPCVA would:
- Include a notice that requires parents to communicate about custody and visitation as soon as possible after the service member learns that they are being deployed. It would also work with the Uniform Child Custody Jurisdiction and Enforcement Act to preserve the residence of the deploying parent when custody issues involve two or more states.
- Encourage private, mutual agreements between parents when the military parent is facing deployment.
- Allow the deploying parent to grant their custodial responsibility to another adult who is either a family member, or someone with whom the child has a close relationship.
- Provide for expedited procedures for entering a temporary custody order during deployment.
Under the Act, when military parents receive orders for deployment, they would be required to give seven days’ notice to the other parent and put together a parenting plan. If the civilian parent wishes to relocate while the deployed parent is away, he or she must give their new address to the deployed parent and to the court.
Enacting the UDPCVA
Though the Act has been recommended in all 50 states, it is not the law in all of them – and it has not yet been enacted in Maryland. Attorney Cynthia Clark of Cynthia H. Clark & Associates, LLC worked with a state representative to introduce a bill that would adopt many of the key provisions of the UDPCVA, but that bill was not voted out of committee. As of today, members of the military in Maryland have no special rights or protections when it comes to custody actions outside of what they have under the SCRA.
Attorney Clark will continue to fight on behalf of military parents here in Maryland, and will continue to work with the State legislature to help create bills that protect the rights of our servicemen and servicewomen.
If you or someone you know is a member of the military and facing a child custody dispute in an upcoming divorce, please contact the experienced Annapolis-based family law attorneys at Cynthia H. Clark & Associates, LLC to schedule a consultation, or call us at 410.921.2422. We proudly represent military families throughout Maryland.
