Service members | Deployments, custody & parenting time

Many state legislatures have recently enacted or proposed legislation to help divorced or separated military service members maintain their parent-child relationships with their children during and after deployments. These laws (or proposed laws) are meant to restore to service members returning from a deployment the relationship he or she had with his or her children prior to deployment.

All too often, custodial parents have impeded or completely eliminated contact between deployed service members and their children. This means that a deployed soldier might call his or her children at the court-specified time, but nobody answers. Letters sent to the children never reach them. Young children who need frequent contact with both parents in order to maintain a parent-child relationship are particularly affected.

Custodial and parenting time interference is very difficult for a deployed service member to effectively overcome. Many soldiers lose most, if not all contact and sometimes even their relationships with their children, especially now, because of the length and frequency of current deployments. Sometimes, the other parent removes a child or children from the state where they were living at the time of deployment and the returning service member is unable to find them. Or the children may be found, but they are in a foreign country from which return is difficult and very costly litigation is required.

Often, service members have a custody arrangement that allows them to play a meaningful role in their children’s lives--sometimes primary custody, prior to their deployments. Many return from serving to find that the custody arrangement agreed upon prior to deployment will continue because of state laws that make changing an existing custody arrangement difficult, if not impossible. These service members, in order to regain their previous custody arrangement, must engage in costly, time-consuming litigation. As any family law attorney will tell you, litigation increases conflict.

36 states have enacted military parent child custody legislation, including Texas, New York, Florida, Illinois, Ohio, Virginia, Washington, Michigan, Colorado, and numerous others. Four other states have legislation pending, including Massachusetts and California.

Pending legislation in California, AB 2416 proposes to resolve service member parent-child problems related to deployments as follows:

• AB 2416 authorizes courts to issue orders granting grandparents, stepparents and extended families the ability to exercise a deployed soldier’s normal parenting time. By allowing the soldiers' families access to the children by court order, the children's relationships with stepparents will be preserved--particularly important where the service member had primary custody prior to deployment. The access afforded to grandparents, stepparents, and other extended family will help those important people in children's lives preserve the memories and ties to the deployed parent, particularly through preserving telephone and email contacts and assurance that letters and packages will get to the children. 
• The current problem of deployed service members inability to enforce visitation/contact orders will be substantially reduced by AB 2416  and similar legislation in other states.
• A rebuttable presumption is created by AB 2416 and similar legislation in other states that upon a service member's return from deployment, child custody and visitation orders will revert to the original order. Such a presumption can protect the critical role these parents play in their children’s lives, and help prevent a military parent from having to re-litigate his or her case.

To review present and pending legislation in various states, current as of July 2010, click here. This chart was constructed by Molly Maynard and Angie Spong, two rising third-year law students at the University of North Carolina School of Law, in connection with the work of a committee of the National Conference of Commissioners on Uniform State Laws. Thanks to Maxine Eichner, Professor of Law, North Carolina School of Law, for making sure credit is given where due.

For more information on divorce, separation, and military families, see my website Michigan Military Divorce 

There are many wonderful reunions of returning service members with their children on YouTube. Here's one that really touched my heart:

Comments

[Doug Dante]

As a non-lawyer, I believe that completely isolating a deployed military parent from her or his children may be reasonably considered domestic violence perpetrated against the deployed parent and the child under Michigan's existing statutes.

http://www.legislature.mi.gov/mileg.aspx?page=getobject&objectname=mcl-Act-389-of-1978&query=on&highlight=400.1501

In particular domestic violence is defined in MCL 400.1501 as:

(d) “Domestic violence” means the occurrence of any of the following acts by a person that is not an act of self-defense:

(i) Causing or attempting to cause physical or mental harm to a family or household member.

(ii) Placing a family or household member in fear of physical or mental harm.

(iii) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.

(iv) Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(e) “Family or household member” includes any of the following:

(i) A spouse or former spouse.

(ii) An individual with whom the person resides or has resided.

(iii) An individual with whom the person has or has had a dating relationship.

(iv) An individual with whom the person is or has engaged in a sexual relationship.

(v) An individual to whom the person is related or was formerly related by marriage.

(vi) An individual with whom the person has a child in common.

(vii) The minor child of an individual described in subparagraphs (i) to (vi).

Domestic violence as defined by statue to me is applicable, because:

Preventing a parent and a child from having a mutually loving relationship can cause both mental harm (d)(ii). A parent or child who is afraid that their relationship is being destroyed is in fear of mental harm (d)(iii). A parent or child who is terrorized because they are punished when they express love for a family member, is frightened or intimidated into not expressing such love, harassed or molested when they express love (d)(iv) is a victim of domestic violence. Family or household members include people who have a child in common (e)(vi) and the minor of such a union (e)(vii).

If I were such a parent, I would seek the advice of a good lawyer to the extent possible. The military may have legal services available for victims of domestic violence.