Custody proposal spurs legislation

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 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-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 reelection every two years.

"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 now seven-year quest to impose a new layer of federal protection over deployed members' child custody rights.

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 as written — and now 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.

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 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 adjutant generals 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.

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 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."

Tom Philpott can be contacted at Military Update, P.O. Box 231111, Centreville, Va. 20120-1111, or by e-mail at:

[email protected]