Child custody bill for military advances in House
By Tom Philpott | Special to Stars and Stripes | Published: June 7, 2012
Legal experts and military family advocates saw their advice ignored anew this year as the House again has passed a controversial bill from Rep. Mike Turner, R-Ohio, aimed at protecting servicemembers 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-to-2 for legislation that the Senate is almost certain to kill, as senators again heed the legal warnings and shrug off, at least on this issue, some of the sound-bite rhetoric that can be so persuasive in the House, where members face re-election every two years.
“Servicemembers 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 now 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, which passed the House both as a stand-alone bill and as part of the fiscal 2013 defense authorization bill, needlessly would 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 of servicemembers over the interests of their children, these critics contend.
They are wrong, Turner said in an interview. “In order to be against this, you would have to argue it is acceptable for a judge to take a child away from a servicemember because they have been deployed,” he said in an interview.
“This legislation is very simple. It states unequivocally that a judge cannot use deployment or future deployment against a servicemember in a custody battle. … It does not relate to other matters that might come up in a normal custody case. It will not give servicemembers an advantage; it just takes away the disadvantage from service.”
Invited by Turner in March to support the bill, Panetta responded with an April 30 letter, not publicly revealed until now and not mentioned during the House floor debate. Panetta said the bill needs a small but critical revision, without which it “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 wrote.
Turner, a five-term congressman whose district includes Wright-Patterson Air Force Base, has coaxed, harangued, some say even “bullied” colleagues, defense officials and service associations into supporting his bill, always citing the same few cases of members who lost or nearly lost custody of children following deployment or temporary stateside reassignment.
Family law experts who have reviewed details of these cases say the outcomes would not have been different had Turner’s bill been in effect.
At the Senate’s request, the Department of Defense conducted a study two years ago to assess the effect 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 adjutant generals to governors and has ordered the services to standardize predeployment 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, a retired Army judge advocate general who wrote the military child-custody and visitation law for his home state of North Carolina.
“Although Mr. Turner has been to law school, his legislation does not show recognition of the fact that when you create federal rights, you also create a right that can be enforced in a federal courtroom,” Sullivan said.
Turner claimed to resolve that problem by adding bill language that nothing in it “shall create a federal right of action or otherwise give rise to federal jurisdiction.” This 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, Sullivan said. “Custody is already too darn expensive to add a federal layer on top of it.”
Turner referred me to the Indian Child Welfare Act of 1978 as an example of federal law impacting custody but, like his bill, not creating a right of action in federal court. Sullivan said he researched the ICWA “for a month” after Turner made the same argument at a 2010 hearing at which Sullivan testified against the Turner bill. Sullivan wrote a six-page paper on his findings and sent Turner a copy.
“Any claim by Mr. Turner that the ICWA prevents parties from taking a case to federal court is utterly false, and it appears that Mr. Turner simply hasn’t done his homework,” Sullivan said in an email.
Kelly Hruska, who’s with the NMFA, said the association came to oppose Turner’s bill because of the risk to families of custody cases landing in courts with no family law expertise. Also, she said, states recently have done “backflips” to reform child-custody laws affecting the 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, called “Deployed Parents Custody and Visitation Act,” that every state will be invited to adopt to strengthen its handling of military family issues.
Sullivan, who worked on the model, conceded that the threat of Turner’s bill someday 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.”