D
R A F T
FOR DISCUSSION ONLY
VISITATION AND CUSTODY ISSUES AFFECTING MILITARY
PERSONNEL AND THEIR FAMILIES
NATIONAL CONFERENCE
OF COMMISSIONERS
ON UNIFORM STATE LAWS
For April 9 - 10, 2010
Committee Meeting
Without Prefatory
Note or Comments
Copyright 82010
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and conclusions
set forth in this draft, including the proposed statutory language and any
comments or reporter=s notes, have not been passed upon by the National
Conference of Commissioners on Uniform State Laws or the Drafting
Committee. They do not necessarily
reflect the views of the Conference and its Commissioners and the Drafting
Committee and its Members and Reporter.
Proposed statutory language may not be used to ascertain the intent or
meaning of any promulgated final statutory proposal.
March 25, 2010
DRAFTING COMMITTEE
ON VISITATION AND CUSTODY ISSUES AFFECTING MILITARY PERSONNEL AND THEIR
FAMILIES
The
Committee appointed by and representing the National Conference of
Commissioners on Uniform State Laws in drafting this Act consists of the
following individuals:
PAUL
M. KURTZ, University of Georgia School of Law, Athens, GA 30602-6012, Chair
BARBARA
ATWOOD, University of Arizona, James E. Rogers College of Law, 1201 E. Speedway, P.O. Box 210176, Tucson, AZ
85721-0176
EFFIE
B. COZART, 6075 Poplar Ave., Suite 500, Memphis, TN 38119
THOMAS
J. DEADRICK, 315 Main St., P.O. Box 788, Platte, SD 57369
FOWLKE,
LORIE, 2696 N. University Ave., #220, Provo, UT 84604
KAY
KINDRED, William S. Boyd School of Law, University of Nevada, Las Vegas, 4505
S. Maryland Pkwy., Box 451003, Las
Vegas, NV 89154-1003
DEBRA
H. LEHRMANN, 360TH District Court, Family Law Center, 200 E.
Weatherford St., 4th Floor,
Fort Worth, TX 76196-0282
BRADLEY
MYERS, University of North Dakota, Randy H. Lee Professor of Law, Law School Room 201, 215 Centennial Dr., Stop
9003, Grand Forks, ND 58202-9003
THOMAS
C. OWENS, 7804 W. 100th St., Overland, Park, KS 66212
ANNE
H. REIGLE, Court of Common Pleas, Kent County Courthouse, 38 The Green, Suite
6, Dover, DE 19901-3602
MAXINE
EICHNER, University of North Carolina School of Law, Ridge Rd., Van Hecke- Wettach Hall, CB#3380, Chapel Hill, NC
27599, Reporter
EX OFFICIO
ROBERT A. STEIN, University of Minnesota Law School, 229
19th Avenue South, Minneapolis, MN
55455, President
GAIL H. HAGERTY, South Central Judicial District, P.O. Box
1013, 514 E. Thayer Ave., Bismark,
ND 58502-6682, Division Chair
AMERICAN BAR ASSOCIATION ADVISOR
JAMES HIGDON, 1200 Huebner Rd., Suite 200, San Antonio, TX
78230-1201, ABA Advisor
JEAN CROWE, 300 Deaderick St., Nashville, TN 37201-1103, ABA Section Advisor
MARK E. SULLIVAN, 2626 Glenwood Ave., Suite 195, Raleigh, NC
27608-1366, ABA Section Advisor
EXECUTIVE DIRECTOR
John A. Sebert, 111 N. Wabash Ave., Suite 1010, Chicago, IL
60602, Executive Director
Copies of this Act
may be obtained from:
NATIONAL CONFERENCE
OF COMMISSIONERS
ON
UNIFORM STATE LAWS
111 N. Wabash Ave., Suite 1010
Chicago,
Illinois 60602
312/450-6600
www.nccusl.org
VISITATION AND
CUSTODY ISSUES AFFECTING MILITARY PERSONNEL AND THEIR FAMILIES
TABLE OF CONTENTS
(a)
Definitions. 1
(b) Custody Proceedings On The Deployment Of A
Service Member. 2
(c) Delegation of custody or visitation time. 4
(d) Resumption of custody arrangements following
return of deploying parent. 5
(e) Changes in custody following return from
deployment. 5
(f) Permanent custody plan preceding deployment. 6
VISITATION AND CUSTODY ISSUES AFFECTING
MILITARY PERSONNEL AND THEIR FAMILIES
[Should
this be more broadly named to cover all uniformed services?]
An Act to establish procedures to determine child custody and
visitation rights when a service member with children is deployed for military
duty or otherwise called to service of the country.
(a) Definitions. As used in this Code section, the term:
(1) “Deploying parent" means a natural or
adoptive parent or a guardian of any child under the age of 18 whose parental
rights or guardianship has not been terminated by a court of competent
jurisdiction; who is a service member; and, who, in this capacity, is deployed
or has been notified of impending deployment for a period of 30 or more days.
(2) “Service member” means a member of either:
(A) the Armed forces, which includes the National
Guard and the reserve components of the armed forces, the United States Army,
the United States Navy, the United States Marine Corps, the United States Coast
Guard, and the United States Air Force, and any other branch of the military
and naval forces or auxiliaries of the United States or the state; or
(B) the Noncombatant Uniformed Services, including
the United States
Public Health Service Commissioned Corps and National Oceanic and Atmospheric Administration
Commissioned Corps.
(3) “Deployment”
means service in compliance with official orders received by a service member
to report for a combat operation, a contingency operation, a peacekeeping
operation, a temporary duty assignment (TDY), a remote tour of duty, or other
active service for which the deploying parent is required to report unaccompanied
by any family member. [It also includes a mobilization or a call-up of a
National Guard or Reserve service member to extended active duty status.] [It also] [Finally,
it] includes a period during which a service member remains subject to
deployment orders and remains deployed on account of sickness, wounds, leave,
or other lawful cause.
(4) “Temporary duty assignment” (TDY) means the
temporary transfer of a service member from one service installation to a
different location for a period usually less than 180 days in order to
accomplish training, assist in the performance of any military mission, or to
receive medical treatment. Upon the
completion of the temporary duty assignment, the service member is scheduled to
return to his or her permanent duty location.
(5) “Nondeploying parent” means a parent or
guardian not subject to deployment.
(1) Temporary
nature of and standard for custody order. The court may, on motion of either parent,
enter an order on custody or visitation either during the time a parent is deployed
or in anticipation of deployment, on a showing that entry of the order is in
the best interests of the child. Any
order in anticipation of or during deployment shall be temporary in nature, and
shall not permanently modify an existing custody or visitation order.
(2) Provisions
of custody order. When entering a
temporary order under this section, the court shall:
(A) specify the deployment that is the basis for
the order and that the order entered is a temporary order;
(B) consider and provide for, if feasible,
contact between the deploying parent and his or her child, including, but not
limited to, electronic communication by webcam, telephone, or other available
means;
(C) consider and direct, if feasible, that the
nondeploying parent facilitate opportunities for telephonic and electronic mail
contact between the deploying parent and the child during the period of
deployment;
(D) consider and provide for, if feasible,
liberal time-sharing during the deploying parent’s periods of leave from
service.
(3) Order
for child support. Where the court
enters an order on custody or visitation under this section, it may also, on
motion of either parent, consider and enter an order on the issue of child
support.
(4) Effect of prior agreement regarding
deployment arrangements. If the
deploying parent and nondeploying parent have agreed in writing to provisions
for custody or visitation of the child in the event of deployment, the court
shall presume that the agreement is in the best interests of the child. This
presumption may be overcome if the court makes specific findings of fact
stating why the agreement is not in the best interests of the child.
(5) Effect
of order on jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement
Act. Any order permitting removal of
the child from this state in anticipation of or during deployment shall be
denominated only as a temporary order; and any absence of the child from this
state as a result of such an order shall be considered a “temporary absence”
for the purposes of the Uniform Child Custody Jurisdiction and Enforcement
Act. For the duration of the deployment,
this state shall retain exclusive continuing jurisdiction under the Uniform
Child Custody Jurisdiction Act; and the existence of a deployment may not be
used as a basis to assert the inconvenience of this state as a forum. This provision shall not prevent the proper
exercise of temporary emergency jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act.
(6)
Expedited hearing. When a deploying parent has received orders of
deployment, upon motion of either parent, the court shall, upon reasonable notice
(considered to be at least 72 hours), and for good cause shown, hold an
expedited hearing on any custody or visitation matter instituted under this
section where the imminent deployment of the parent will have a material effect
on the parent's ability, or anticipated ability, to appear in person at a
regularly scheduled hearing. At the
expedited hearing, the court may also consider the issue of child support. The motion for such an expedited hearing
shall include the date on which the deployment begins.
(7) Electronic
communications. Upon motion of a deploying
parent, the court shall, upon reasonable notice and for good cause shown, allow
the parent to present testimony and evidence by electronic means in custody,
visitation, and support matters instituted under this section where the deployment
will have a material effect on the parent's ability to appear in person at a
regularly scheduled hearing. The phrase “electronic means” includes
communication by telephone, video teleconference, or the Internet.
(1) Order
of delegation. Upon the motion of
the deploying parent or a family member of the deploying parent, and for the
duration of the deployment, the court may delegate the service member’s custody
or visitation rights, or a portion thereof, to a family member who has a close
and substantial relationship to the minor child if this delegation is in the
best interests of the child. A “close
and substantial relationship” means one in which the deploying parent has
established a bond between their child and the family member by visits or
regular communications. Any such
delegation shall not exceed the custody or visitation rights granted to the
deploying parent under any existing permanent order, with the exception that
the court may take into account atypical travel time required to transport the
child between the nondeploying parent and the family member to whom custody or
visitation rights are delegated.
(2) Temporary
and derivative nature of delegation ordered. Neither this provision nor a
court order permitting delegation shall be deemed to create any permanent or
separate rights to custody or visitation for any person to whom custody or
visitation rights are delegated.
(3) Standing
to enforce delegation rights. Once
the court has delegated custody or visitation rights, the person to whom such
rights are delegated shall have full legal standing to enforce these rights,
including by a motion for contempt or any other means.
(1)
Termination
of temporary custody order. Any
temporary custody order entered on deployment shall end no later than 30 days
after the deploying parent returns from deployment, unless, on a motion from
the nondeploying parent, the court finds that reversion to the previous custody
arrangement is not in the best interest of the child. For purposes of the
hearing, the nondeploying parent shall bear the burden of showing that
restoration of the custody arrangement in effect before the deployment is not
in the child’s best interests.
(2)
Consideration
of deployment in determining child’s best interests. In determining the
best interests of the child, for purposes of this hearing, the fact of the
deployment itself shall not be considered as a factor, although effects of the
deployment aside from any temporary inconvenience caused to the child may be
considered.
(3) Expedited
hearing. Any motion by the nondeploying
parent to prevent reversion to the previous custody arrangement that is filed
within 30 days of the deploying parent’s return shall be heard by the court on
an expedited basis.
(1) Consideration
of past deployment in determining child’s best interests. In any proceeding for modification of a custody
decree or a petition for modification of a custody order that occurs subsequent
to a deploying parent’s return from deployment, the parent's deployment itself shall
not be considered as a factor in determining the child’s best interests,
although effects of the deployment aside from any temporary inconvenience
caused to the child may be considered.
[(2) Consideration
of future deployment in determining child’s best interests. In any proceeding for modification of a
decree or a petition for modification of a custody order that occurs subsequent
to a deploying parent’s return from deployment, the possibility of a parent's
future deployment itself shall not be considered as a factor in determining the
child’s best interests, although effects of the deployment aside from any
temporary inconvenience caused to the child may be considered.]
(f) Permanent
custody plan preceding deployment.
If either parent is a service member
subject to possible deployment, any permanent child custody plan entered into
between the parties must provide terms for custody and visitation in the event
of deployment.