Turner and his critics advance child custody reforms

Tuesday , March 18, 2014 - 1:40 PM

Tom Philpott

Legal experts and military family advocates saw their advice ignored anew this year as the House again passed a controversial bill from Rep. Mike Turner, R-Ohio, aimed at protecting service members from losing custody of their children because of military deployments.

Among the bill's critics this year is Defense Secretary Leon Panetta.

The vote last week was 390-2 for legislation that the Senate is almost certain to kill, as senators again heed the legal warnings.

"Service members should not have to worry while they're deployed, or facing a future deployment, that their service to country might cost them the custody of their children," Turner said.

Who could disagree?

The National Military Family Association, the American Bar Association and some of the most experienced family law attorneys in the country, however, oppose Turner's seven-year quest to impose a new layer of federal protection over deployed members' child custody rights.

They argue that his Servicemember Family Protection Act (H.R. 4201), which passed the House both as a stand-alone bill and as part of the fiscal 2013 defense authorization bill, would needlessly create a right of federal court review in military custody cases. This would drive up legal costs for families, bring custody disputes before judges having no family law experience and tip outcomes in favor service members over the interests of their children, these critics contend. They are wrong, Turner said.

"In order to be against this you would have to argue it is acceptable for a judge to take a child away from a service member because they have been deployed," Turner told me. "This legislation is very simple. It states unequivocally that a judge cannot use deployment or future deployment against a service member in a custody battle...It does not relate to other matters that might come up in a normal custody case. It will not give service members an advantage; it just takes away the disadvantage from service."

In an April 30 letter, not publicly revealed until now, Panetta said the bill as written and passed by the House needs a small, but critical, revision.

Without it, the bill "would appear to constitute a federal mandate to state courts that they, in certain circumstances, subordinate the best interests of the child to the interests of an adult service member...(T)he best interest of the child should always be the highest priority in child custody cases," Panetta said.

At the Senate's request, the Department of Defense conducted a study two years ago to assess the affect of deployments on child custody. It found "no judicial trend and no reported case suggesting that service members are losing custody of their children solely because of their military service."

At the same time critics acknowledge that Turner's doggedness on the issue has spurred states to clarify child custody laws involving deployed members. DoD passed his concerns through state adjutants general to governors and has ordered the services to standardize pre-deployment Family Care Plans and to have every member with children prepare one.

The big worry for legal experts is that Turner's bill would allow "any disgruntled loser" of a military child custody case to seek a better outcome through federal court, said attorney Mark E. Sullivan. He is a retired Army JAG who wrote the military child custody and visitation law for his home state North Carolina and has practiced family law for four decades.

Turner claimed to resolve that problem by adding language that nothing in it "shall create a federal right of action or otherwise give rise to federal jurisdiction." The change is ineffective, Sullivan and the ABA contend.

"He fails to recognize already existing law that will allow anybody who fails to get what they want in state court to immediately go across the street and make a federal case of it...Custody is already too darn expensive to add a federal layer on top of it," Sullivan said.

Kelly Hruska, of the National Military Family Association, said NMFA opposes Turner's bill because of the risk of custody cases landing in courts with no family law expertise. Also, she said, states recently have done "back flips" to reform child custody laws affecting military, in part, perhaps to avoid the federal remedy sought by Turner.

"Currently 40 states have passed legislation that says deployment cannot be used as the sole factor in custody issues," Hruska said.

In July the Uniform Law Commission will unveil model legislation, Deployed Parents Custody and Visitation Act" that every state will be invited to adopt to strengthen its handling of military child family issues.

Sullivan, who worked on the model, conceded that the threat of Turner's bill becoming law spurred him and other family law experts to produce "something really good so we don't need federal legislation. So if that be credit, credit is due to Mr. Turner."

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