October 30, 2007
CHANGING CHILD CUSTODY DURING A DEPLOYMENT
By: Susan Price, Principal Legislative Analyst
You asked whether courts can change custody arrangements while a custodial parent is absent from its jurisdiction due to military deployment. You also wanted to know if (1) courts consider a parent's absence caused by a military deployment as a factor in making child custody decisions and (2) federal or other states' laws address this issue. This report supplements OLR Report 2007-R-0521.
Courts can change child custody arrangements during a parent's military deployment, but the federal Servicemembers Civil Relief Act imposes temporary suspensions on civil court proceedings that may adversely affect servicemembers' civil rights during their military service. It also prohibits courts from entering or enforcing default judgments against servicemembers who have not entered appearances in civil suits until they have appointed counsel.
Family courts take a parent's military status, including actual or likely deployments, into account when resolving child custody disputes if one of the parents or a child's legal representative raises the issue. As courts must base their decisions on the child's best interests, a parent's actual or likely long-term deployment may be relevant because that parent must rely on others, such as current spouses, grandparents, or other relatives to take care of the child in his or her absence. Alternatively, if the soldier-parent intends to have the child accompany him or her to a distant location, courts have considered the impact this is likely to have on the child's ability to maintain strong relationships with the other parent and family members (Jay Zetter: Effect of Parent's Military Service Upon Child Custody, 21 ALR 6th 577 (2007)).
Several states, including Arizona, California, Florida, Kentucky, and Wisconsin have enacted laws limiting the weight family courts can give to deployment-related circumstances. Similar legislation is being considered in the U.S. Senate and New York State Assembly.
We enclose copies of the laws and proposed bills.
THE SERVICEMEMBERS CIVIL RELIEF ACT
The federal Servicemembers Civil Relief Act (SCRA) permits servicemembers who have been served with legal papers to ask the court to temporarily suspend (stay) further action in the case (50 USC App. §501 et seq.). The court must stay the case for at least 90 days if the request includes the following information:
1. the servicemember's description of how current military duties affect his or her ability to appear in court and a date on which a court appearance is possible and
2. a commanding officer's statement indicating that the servicemember's duties prevent a court appearance and that he or she is not currently authorized to take military leave (50 USC App. §522).
Servicemembers may request additional stays based on the continuing effect of their military duties on their ability to appear. The same information described above must accompany each request. If the court refuses to order an additional stay, it must appoint an attorney to represent the servicemember in the action or proceeding (50 USC App. §522(s)(2)).
The SCRA also prohibits civil courts from entering judgments, orders, or adverse rulings against a party who has not filed an appearance in a case (i.e., acknowledged receipt of service of legal process) without determining whether the absent party is in the military. If the court finds that the party is in the military, it cannot enter a default judgment without first appointing an attorney to represent the servicemember (50 USC App. §521). It must stay the proceedings for at least 90 days if it determines either that (1) there may be a defense to the action and a
defense cannot be presented without the servicemember's presence or (2) after due diligence, counsel has been unable to contact the servicemember or otherwise determine if a meritorious defense exists.
STATE CHILD CUSTODY LAWS CONCERNING DEPLOYED PARENTS
Arizona's law specifies that a custodial parent's military deployment is not a legally sufficient reason for modifying child custody if that parent (1) will be deployed for less than six months and (2) has filed a military care plan that adequately identifies substitute caregivers and their responsibilities. The law also requires that child custody orders made in contemplation of or during the custodial parent's deployment include provisions assigning custody after the deployment ends (Ariz. Rev. Stat. §25-411).
California law specifies that a parent's absence, relocation, or failure to comply with custody and visitation orders is not a legally sufficient reason for modifying a child custody order when caused by the parent's activation to military service and out-of-state deployment (Cal. Fam. Code §3047).
Florida law prohibits courts from permanently modifying a custody order when the parent's ability to continue as the child's primary caretaker is materially affected by his or her activation, deployment, or temporary military assignment. Temporary modifications are permissible if supported by clear and convincing evidence that this is in the child's best interests. The court must reinstate the previous order when the parent is de-activated or returns from the deployment or temporary assignment.
Temporary custody modifications must include provisions ensuring continuing contact between the child and soldier-parent, if feasible. The statute lists webcam, telephone, and other electronic communication technologies as methods for accomplishing this. It also directs courts to permit liberal visitation during military leaves, stating that it is in the child's best interests to maintain the parent-child bond during a parent's military service (Fla. Stat. Ann. §61. 13002).
The Kentucky statute mandates that custody modifications be temporary when based in whole or in part on a parent or de facto custodian's (1) deployment as a member of the armed forces outside the United States or (2) call to federal active duty as a member of a state's National Guard or Reserve component. The previous custody arrangement must be reinstated when the deployment or activation ends unless the soldier-parent agrees to have the modified arrangement continue for a longer time (Ky. Rev. Stat. Ann. §403. 340).
The Wisconsin legislature passed a law in 2006 that prohibits courts from considering a parent's active duty or the likelihood of future deployments when (1) determining or modifying child custody arrangements or (2) reinstating periods of physical custody after the parent is discharged from active duty. If temporary custody changes are made during a deployment, the law requires that the previous arrangement be reinstated when the deployment ends (2005 Wisconsin Act 471, codified at Wis. Stat. §§ 767. 24 and 767. 325).
A bill pending in the U. S. Senate would prohibit courts from ordering permanent child custody changes while an affected parent is deployed (S 1658). And a bill pending before the New York State Assembly would prohibit courts from considering a parent's deployment as a detrimental factor when awarding child custody, so long as that parent provides the court with a suitable child care plan (A 6027).