One of the certainties facing our American military personnel is that there will be a deployment or deployments in their future. Many of our men and women in the armed forces are custodial parents in single-parent households. How can these fathers and mothers protect their custodial relationships with their children when a deployment means placement of the children with a non-custodial parent or with a third party or parties such as aunts and uncles or grandparents?
Let me first make it clear that I am a Michigan family lawyer and I can only speak from the viewpoint of what Michigan law provides. I have a strong belief, however, that what I am about to tell you may also be true in the state where a custody and parenting time / visitation was entered regarding your child or children. Let me also be clear about the fact that every family law case is “fact-driven.” What I mean by that is that every family has its own unique set of circumstances and specific facts that will ultimately provide a trial court with the factual basis to rule in your favor --- or, sadly, to rule against you.
<p>My goal here is to provide you with the information, the forms, and the skills that will help you to protect your custodial relationship with your child or children. Bear in mind that I am providing you with general information that is not intended to create an attorney/client relationship. For expert guidance to resolve and to protect your specific family situation, you should consult with a professional in your state of residence.</p>
That said, let’s take a look at two specific cases decided by the Michigan Court of Appeals to see how the voluntary relinquishment of a child because of a deployment may impact on the custodial relationship.
Johnson v Johnson: Returning Military Parent with Parent/Child Relationship Endangered by Deployment.
The first case, Johnson v Johnson, Docket No. 258062, was decided by the Michigan Court of Appeals on March 1, 2005. You can use the hyperlink here to read the whole case or to download it to your computer. This case illustrates the danger faced by servicemen and servicewomen – custodial parents who relinquish temporary care of their child or children because they are about to be deployed – that they may lose custody after they return after fulfilling their service commitment.
I. The Facts in Johnson were as follows:
May 10, 1999: >An Idaho court awarded defendant Kathy Lou Johnson primary physical custody of the parties' minor child in a divorce judgment.
June 2002: The minor child came to Tobias Johnson's home in Michigan for scheduled visitation / parenting time.
August 2002: The military ordered Kathy Johnson, who was a reservist with the United States Army, to prepare for active duty deployment. The parties agreed at this point that the minor child would stay with Tobias Johnson and enter school.
February 2003: The military deployed Kathy Johnson.
February 2004: Kathy Johnson was released from active duty and returned home to the state of Washington.
The parties then disagreed regarding whether the minor child should remain living with Tobias Johnson or return to living with Kathy Johnson.
June 2004:The principal at the school the minor child was attending in Michigan released him to Kathy Johnson, and she took the minor child back to Washington with her.
Thus, the minor child resided with Tobias Johnson in Michigan for a period of two years from June 2002 to June 2004.
II. What happened in the trial court:
After Kathy Johnson took the minor child back to Washington, Tobias Johnson filed the complaint in this case in the Jackson Circuit Court, seeking custody of the minor child. The trial court denied Tobias Johnson's motion for temporary custody of the minor child:
There were two bases for the trial court’s decision:
(1) Jurisdiction: The trial court concluded that it lacked jurisdiction over the case with the proper venue for issues regarding the minor child's custody being in Idaho where the judgment had been entered.
(2) No material change in circumstances: The trial court concluded that there was not a material change of circumstances sufficient to warrant review of the minor child's custody.
III. The Court of Appeals Decision.
A. Jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
Court of Appeals held that the trial court was in error in declining jurisdiction because jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act gave the court the authority to modify the existing child custody order entered in Idaho.</p>
There were two grounds for this ruling
1) Neither party now resided in Idaho and the UCCJEA provides that if no parent resides in the state entering the custody order, that there is no jurisdiction there.
2) Michigan was the home state of the child on the date of the commencement of the proceeding and the home state of the child within 6 months before the commencement of the proceeding and even though the child was absent from this state his parent continued to live in this state.
MCL 722.1102(g) defines "home state" for purposes of the UCCJEA in relevant part as "the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding." Because Tobias Johnson initiated the present proceeding in June 2004 and it is undisputed that the child lived with him in Michigan for over six consecutive months from June 2002 to June 2004 and Tobias Johnson continues to live in Michigan, the trial court had jurisdiction to make an initial child-custody determination under MCL 722.1201(1)(a).
Public Policy Concerns Articulated by the Trial Court:
The Johnson trial court had relied upon public policy concerns to protect the rights of parents serving or who had served in the military, according to the Court of Appeals. The Court of Appeals said that it was “striking” that the trial court did not simply look to the UCCJEA to resolve the jurisdictional issue. The COA said that it is plain that nothing in the UCCJEA allows for consideration of public policy concerns in determining whether a court has jurisdiction to modify a child custody award previously made by a court of another state, and the trial court had no business reading public policy concerns into a plain and unambiguous law. This raises concerns about protection of custodial rights of persons deployed by the military who leave their children with the NCP. But, as you will see in the discussion of the next Michigan case, if properly protected in advance by the parent who is being deployed, a good argument can be made in the trial court that will protect the parent/child relationship.
NOTE: It is important to note that as a direct result of the Johnson case, the Michigan Legislature amended the Chilc custody Act with the intention of protecting the rights of custodial parents who have been deployed. See MCL 722.27. The added language of the statute says:
"If a motion for change of custody is filed during the time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child. Upon a parent's return from active military duty, the court shall reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court shall not consider a parent's absence due to that military duty in a best interest of the child determination."
B. Legal Grounds for Allowing the NCP a Hearing on his Motion to Change Custody:
The Court of Appeals next addressed whether the trial court erred in refusing Tobias Johnson a hearing on his motion to change custody. No hearing on a motion is required unless Tobias Johnson can show that either good cause or a material change in circumstances justified the trial court’s revisiting and modification of the prior custody order. In its oral remarks, the trial court indicated that Kathy Johnson's deployment by the military did not constitute a material change in circumstances.
The Court of Appeals held that the trial court’s decision was legally flawed. Citing Vodvarka v Grasmeyer, 259 Mich App 499, 512 (2003), the Court of Appeals stated that a "change of circumstances" in the present context requires "that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child's well-being, have materially changed." The Court of Appeals then said that:
“[T]his [the trial court’s statement that the deployment was not a material change in circumstances] is simply not an appropriate analysis of whether there was a material change in the child's circumstances. It is undisputed that, as a result of Kathy Johnson's deployment, the child resided with Tobias Johnson for a two-year period during which he attended school in Michigan. Clearly, moving a young child from residing with one parent to residing with the other parent for a two-year period during which the child attends a new elementary school may constitute a change in circumstances that could have a significant effect on the child. For example, it is readily conceivable that the child may have become so closely bonded with Tobias Johnson and attached to his new school and community over this two-year period that these would be factors weighing heavily in favor of modifying the Idaho court's award of custody by granting primary physical custody of the child to Tobias Johnson."
Note: Every child custody fact has its own unique facts. Had Kathy Johnson been in the Army Reserves at the time the original child custody award to her was made in Idaho, a good-faith argument could be made that everybody knew – the judge and the parties – that Kathy Johnson was likely to be deployed in the future and thus, that her future deployment and temporary relinquishment of custody during her deployment was not a change in circumstances since the entry of this last custody order.
Thus, the Court of Appeals remanded the case to the trial court to hold a hearing on Tobias Johnson’s motion and to determine whether custody should change to the father.
Protecting the Parent/Child Relationship During A Deployment with a Specific Agreement
Now, let’s see some illustrations of how a custodial parent might, with a specific agreement, protect his or her parent/child custodial relationship where he or she must temporarily transfer custody during a deployment. This protection does raise a public policy exception – one that the Johnson case said was irrelevant when one strictly construed the UCCJEA. However, given the fact that deployments are almost always of a duration exceeding 6 months, it is important to put maximum safeguards in place.
There are some older Michigan cases re-affirming long-standing public policy about a custodial parent temporarily relinquishing custody to a third party and suffering no destruction of the parent/child relationship.
It has long been public policy in Michigan, and I suspect in many other states as well, to encourage custodial parents to relinquish custody to a third party or parties where the CP has a temporary need for third-party care and a safe custodial environment for a child. This is most often seen in cases where the CP has a medical need (a substance-abuse problem, for example), or some other reason why he or she needs some time and space to get his or her life straightened out. Where all of the parties agree that their understanding at the time of the relinquishment was to be temporary, courts have usually upheld those agreements.
See McGhan v. Wilson, No. 229286 (Mich.App. 02/20/2001):
1992: Parties were divorced. Custody was awarded to Plaintiff Mom and Defendant Dad had parenting time.
1999: Mother moved from Hart, Michigan to Lansing, Michigan because her husband got a better job. She and Dad decided that the child should finish out the school year in Hart and remain with Dad for “temporary parenting time” until June 2000. The parents drew up a written agreement to this effect and met with the Friend of the Court regarding it. Mom testified at a later hearing that it was her understanding that the child would be returned to her custody in June 2000. Dad disagreed, saying that their agreement was that custody would be reevaluated in June 2000. He filed a motion to change custody. The trial court held a hearing and ruled that there was no change in circumstances to justify changing the custody from Mom to Dad.
The Court of Appeals disposed of most of Dad’s issues on appeal summarily. The court’s last pronouncement bears re-stating:
“Finally, we are satisfied that the public policy encouraging parties to reach amicable agreements regarding custody supports our affirmation of the trial court's order.” See generally Straub v Straub, 209 Mich App 77, 81 (1995). The Court of Appeals held that its decision to affirm the trial court's order keeping custody with Mom furthered the underlying purpose of the Child Custody Act which is to "erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders."
How could the mother in McGhan v Wilson have avoided a court hearing at all? It seems relatively apparent that the parties’ written agreement did not state in specific enough terms that Mom’s voluntary relinquishment of the child for the remainder of the school year was intended to maintain the child’s school enrollment so that there was no change in mid-year. It should have stated with specificity that her relinquishment of custody was intended to be temporary only, that the child would be returned to her in June 2000, and that both parties understood fully the reasons for this deviation from the existing court order and agreed that this temporary deviation was in the child’s best interests.
Theroux v Doerr, 137 Mich App 147 (1984):
In that case, a 1978 judgment of divorce awarded legal and physical custody of the children to the plaintiff mother. Four years later, Mom was accepted into a 9-month Master’s Degree program in Denver, Colorado. She petitioned the court for permission to remove the children for this 9-month period. Defendant Father objected. The parties compromised, agreeing that for the nine months she was to be in Colorado for this educational enterprise, custody would be transferred to the father. Just prior to Mom’s return from Colorado, Dad filed a motion to change custody and the court ordered a full evidentiary hearing. After the hearing, the trial court changed custody, granting joint legal and joint physical custody to the parties, with Dad having the children during the school year and Mom having them during the summer. Mom appealed.
The Court of Appeals ruling:
This ruling is so comprehensive in its statement that it bears verbatim repetition, although I have omitted the citations within it:
This Court has previously given effect to agreements entered into by the parents which temporarily limit the period of one parent's custody. (citing cases going back to 1970) In doing so we have acknowledged the general policy which seeks to maintain continuity to protect the best interests of the child. Nevertheless, because of our desire to encourage a mother to relinquish custody if she feels unable to provide for her charges, we have excepted from this general policy the practice whereby a parent temporarily and voluntarily relinquishes custody to protect the children's best interests. We encourage such a practice by returning custody to that parent; otherwise a mother would be reluctant to relinquish custody if she knew that, once it passed to the father, it could not be regained. In reinforcing this practice, we will reverse a trial court which, because of its desire to maintain continuity, continues custody with the parent who was the beneficiary of a temporary arrangement.
A third recent case in the Michigan Court of Appeals, decided Janury 21, 2003, also upheld the parents’ agreement of a temporary relinquishment. See Jenkins v. Bledsoe-Green, Docket No. 238987 Legally sufficient agreements stating the temporary nature of the transfer of custody during a deployment: Here are links to a form agreement that you can download to your computer or can print.
This proposed agreement is one that you will want to review with your own attorney who can best advise you whether the law of the state where you live will support the enforcement of the agreement. Every family law case is different and the facts of your particular situation will determine the outcome in your case, depending upon the particular circumstances surrounding your family’s case.
The Family Care Plans that are a part of the deployment process in every branch of the armed forces are general. You should enter into a specific agreement with the third party or parties – your former spouse, your child’s other biological parent or your child’s grandparent(s) that sets forth clearly the intention that the transfer of custody in intended to be temporary. The form found at this link may be used for that purpose or your attorney may determine that you should make certain modifications to it to render it enforceable in your state.
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