D R A F T

FOR DISCUSSION ONLY

VISITATION AND CUSTODY ISSUES AFFECTING MILITARY PERSONNEL AND THEIR FAMILIES

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NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAW

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For September 24 – 26, 2010 Drafting Committee Meeting

Without Prefatory Note or Comments

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

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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.

September 13, 2010

DRAFTING COMMITTEE ON VISITATION AND CUSTODY ISSUES AFFECTING MILITARY PERSONNEL AND THEIR FAMILEIS

The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in preparing this Act consists of the following individuals:

PAUL M. KURTZ, University of Georgia School of Law, 225 Herty Dr., 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 BEAN COZART, 6075 Poplar Ave., Suite 500, Memphis, TN 38119

THOMAS J. DEADRICK, 315 Main St., P.O. Box 788, Platte, SD 57369

LORIE FOWLKE, 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, 360^thDistrict Court, Family Law Center, 200 W. Weatherford St., 4^th Floor, Fort Worth, TX 76196-0282

BRADLEY MYERS, University of North Dakota School of Law, 215 Centennial Dr., Stop 9003, Room 201, Grand Forks, ND 58202-9003

THOMAS C. OWENS, 7804 W. 100^th St., Overland Park, KS 66212

ANNE H. REIGLE, Court of Commons Pleas, Kent County Courthouse, 28 The Green, Suite 6, Dover, DE 19901-3602

MAXINE EICHNER, University of North Carolina School of Law, 160 Ridge Rd., Ban Hecke- Wettach Hall, CB #3380, Chapel Hill, NC 27599, Reporter

EX OFFICIO

ROBERT A. STEIN, University of Minnesota Law School, 229 19th Ave. S., Minneapolis, MN 55455, President

GAIL H. HAGERTY, South Central Judicial District, P.O. Box 1013, 514 E. Thayer Ave., Bismark, ND 58502-1013, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

JAMES HIGDON, 1200 Huebner Rd., Suite 200, San Antonio, TX 78230-1201, ABA Advisor

JEAN CROWE, Legal Aid Society, 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 FAMILEIS

TABLE OF CONTENTS

[ARTICLE] 1

GENERAL PROVISIONS

SECTION 101. SHORT TITLE.................................................................................................... 1

SECTION 102. DEFINITIONS.................................................................................................... 1

SECTION 103. REQUIREMENT TO PLAN FOR DEPLOYMENT......................................... 2

SECTION 104. CONSIDERATION OF PAST OR FUTURE DEPLOYMENTS IN CUSTODY PROCEEDINGS................................................................................................................ 2

SECTION 105. EFFECT OF DEPLOYMENT ON JURISDICTION........................................ 3

[ARTICLE] 2

CUSTODY PROCEEDINGS UPON NOTICE OF DEPLOYMENT

SECTION 201. NOTICE REQUIRED TO NONDEPLOYING PARENT................................ 4

SECTION 202. EXPEDITED HEARING................................................................................... 4

SECTION 203. ELECTRONIC TESTIMONY............................................................................ 4

SECTION 204. TEMPORARY NATURE OF CUSTODY ORDER.......................................... 5

SECTION 205. EFFECT OF PRIOR AGREEMENT OR JUDICIAL DECREE...................... 5

SECTION 206. PROVISIONS OF TEMPORARY CUSTODY ORDER.................................. 5

SECTION 207. ORDER FOR CHILD SUPPORT...................................................................... 6

[ARTICLE] 3

DELEGATION OF VISITATION TIME.

SECTION 301. AUTHORITY TO DELEGATE......................................................................... 7

SECTION 302. STANDARD FOR DELEGATION................................................................... 7

SECTION 303. SCOPE OF DELEGATION............................................................................... 7

SECTION 304. CONTENTS OF ORDER................................................................................... 7

SECTION 305. STANDING TO ENFORCE DELEGATED RIGHTS...................................... 8

[ARTICLE] 4

PROCEDURES FOLLOWING RETURN FROM DEPLOYMENT

SECTION 401. PROCEDURE FOR RESUMING PRIOR CUSTODY ARRANGEMENT.... 9

SECTION 402. VISITATION PRIOR TO TERMINATION OF TEMPORARY ORDER...... 9

SECTION 403. TERMINATION OF TEMPORARY CUSTODY ORDER.............................. 9

SECTION 404. EXPEDITED HEARING................................................................................. 10

SECTION 405. STANDARD FOR RETAINING TEMPORARY ORDER............................ 10

SECTION 406. AUTHORITY TO ORDER TRANSITION PERIOD..................................... 10

SECTION 407. SANCTIONS FOR BAD FAITH..................................................................... 10

MILITARY VISITATION AND CUSTODY ACT

[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.

[ARTICLE] 1

GENERAL PROVISIONS

SECTION 101. SHORT TITLE. This [Act] may be cited as the Uniform Military Custody and Visitation Act.

SECTION 102. DEFINITIONS. In this [Act]:

(1) “Custodial responsibility” refers to legal custody, physical custody, or visitation rights with respect to a child.

(2) “Deploying parent" means:

(A) a legal parent of any child under the age of 18, or the legal parent of any child who has reached the age of majority but is physically or mentally incapacitated from supporting himself, or the guardian of any person;

(B) who is a service member; and

(3) “Deployment” means the temporary transfer of a service member in compliance with official orders to another location in support of combat or some other operation for a period of more than 30 days, during which family members are not authorized to accompany the service member at government expense.

(4) "Guardian" means a person who has qualified as a guardian of a minor or incapacitated adult pursuant to appointment by a court. The term includes a limited guardian but not a guardian ad litem.

(5) “Nondeploying parent” means a legal parent or guardian who is not deployed who has a child or ward in common with a deploying parent.

(6) “Service member” means a member of either:

(A) the active or reserve components of the Army, Navy, Air Force, Marine Corps, and Coast Guard of the United States, or any other branch of the armed forces of the United States;

(B) the Merchant Marine, the commissioned corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or

(7) “Visitation” means the right to take a child for a limited period of time to a place other than the child's habitual residence.

SECTION 103. REQUIREMENT TO PLAN FOR DEPLOYMENT. In an original custody proceeding within the jurisdiction of a court of this State, if either parent is a service member subject to possible deployment, the court shall provide for the terms of custodial responsibility in the event of deployment.

SECTION 104. CONSIDERATION OF PAST OR FUTURE DEPLOYMENTS IN CUSTODY PROCEEDINGS. In any proceeding for custodial responsibility of a child of a service member, whether it be an original proceeding for custody or the modification of a previous custody order, past deployments or possible future deployments of the service member shall not be considered as a factor in determining the child’s best interests, except that effects of the deployment aside from any temporary inconvenience caused to the child may be considered. This section does not apply to proceedings for a temporary order of custodial responsibility.

SECTION 105. EFFECT OF DEPLOYMENT ON JURISDICTION. The removal of a child from this state in anticipation of or during deployment shall be considered a “temporary absence” for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, [ ]. If this state had exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act at the time of the deployment, it shall retain this jurisdiction for the duration of deployment; and the existence of a deployment may not be used as a basis to assert the inconvenience of this state as a forum or otherwise to remove jurisdiction from the courts of this state. This section shall not prevent the exercise of temporary emergency jurisdiction by a court of this State under the Uniform Child Custody Jurisdiction and Enforcement Act.

[ARTICLE] 2

CUSTODY PROCEEDINGS UPON NOTICE OF DEPLOYMENT

SECTION 201. NOTICE REQUIRED TO NONDEPLOYING PARENT. A deploying parent shall notify the nondeploying parent of the deployment within [ ] days of receiving an order of deployment. If a valid court order requires that the address or contact information of the nondeploying parent be kept confidential, the notification shall be made to the court only. In the event of a failure to notify the nondeploying parent, the court may award attorneys’ fees and costs to the nondeploying parent.

SECTION 202. EXPEDITED HEARING. When a deploying parent has received orders of deployment, either parent may move the court for an expedited hearing on any matter pertaining to custodial responsibility. The motion shall include the date on which the deployment begins. On such a motion, and 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, the Court shall schedule an expedited hearing within [ ] days.

SECTION 203. ELECTRONIC TESTIMONY.

(a) A deploying parent who is entitled to a stay in civil proceedings pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. App. §§501–596, may elect to proceed while he or she is reasonably unavailable to appear in the geographical location in which the litigation is pursued and may seek relief and provide evidence through video conferencing, internet camera, email, or other reasonable electronic means.

(b) The court may deny the deploying parent the opportunity to present evidence by electronic means if it would cause a substantial injustice, deny effective cross examination, deny the right to confront the witness, or abridge another constitutional right.

SECTION 204. TEMPORARY NATURE OF CUSTODY ORDER. At or after the time that a deploying parent receives notice of deployment, any court with jurisdiction under the laws of this state may enter a temporary order for custodial responsibility under applicable state law, so long as this order is in compliance with the Servicemembers Civil Relief Act 4 (50 USC Appx. § 522). A court of this state may not enter a permanent order regarding custody or visitation prior to or during a deploying parent’s deployment without the deploying parent’s consent.

SECTION 205. EFFECT OF PRIOR AGREEMENT OR JUDICIAL DECREE.

(a) If a prior judicial decree contains provisions for custodial responsibility of the child in the event of deployment, those provisions are binding on the court in the absence of either: (1) a subsequent change of circumstances that was not foreseen at the time of the prior judicial decree; or (2) a showing that enforcement of those provisions would cause substantial harm to the child.

(b) If the deploying parent and nondeploying parent have previously agreed in writing to provisions for custodial responsibility 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 only if the court makes specific findings of fact stating why the agreement is not in the best interests of the child.

SECTION 206. PROVISIONS OF TEMPORARY CUSTODY ORDER. When entering a temporary order for custodial responsibility prior to or during a service member’s deployment, the court shall:

(a) identify the nature of the deployment that is the basis for the order; state that the order is a temporary order;

(b) specify the contact between the deploying parent and his or her child that shall occur during deployment, including the means by which the deploying parent may remain in communication with the child, such as electronic communication by webcam, telephone, or other available means;

(c) order liberal contact between the deploying parent and child when the deploying parent is on leave or is otherwise available consistent with the best interests of the child.

SECTION 207. 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, and with competent jurisdiction, enter a temporary order for child support consistent with the laws of this state.

[ARTICLE] 3

DELEGATION OF VISITATION TIME.

SECTION 301. AUTHORITY TO DELEGATE. Upon the motion of the deploying parent to delegate visitation rights, the court may grant reasonable visitation to a member of the child’s family, including a stepparent or stepsibling, with whom the child has a close and substantial relationship. A “close and substantial relationship” means one in which a bond has been forged between the child and the other person by regular contact or communications. The visitation awarded under this Article derives from the deploying parent’s own right to custodial responsibility. Neither this Article nor a court order permitting delegation shall be deemed to create any separate or permanent rights to visitation.

SECTION 302. STANDARD FOR DELEGATION. The court shall grant reasonable visitation upon a finding that it is in the best interests of the child. There shall be a rebuttable presumption that visitation shall not be granted to a family member who has perpetrated domestic violence against a spouse, a child, or a domestic living partner, or to a family member with an individual in the family member's household who has a history of perpetrating domestic violence against a spouse, a child, or a domestic living partner.

SECTION 303. SCOPE OF DELEGATION. Any visitation ordered by the court under this Article shall be temporary in nature and shall not exceed the amount of custodial time granted to the deploying parent under any existing permanent order or agreement between the parents, 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 visitation rights are delegated.

SECTION 304. CONTENTS OF ORDER. In an order granting delegation of visitation rights, the court shall:

(a) set out a process to resolve any disputes that may arise between the person receiving visitation and the nondeploying parent;

(b) identify the nature of the deployment that is the basis for the order; and

SECTION 305. STANDING TO ENFORCE DELEGATED RIGHTS. Once the court has ordered visitation, the person to whom visitation is ordered shall have legal standing to enforce this visitation, so long as the deploying parent has not revoked consent to the delegation of visitation rights.

[ARTICLE] 4

PROCEDURES FOLLOWING RETURN FROM DEPLOYMENT

SECTION 401. PROCEDURE FOR RESUMING PRIOR CUSTODY ARRANGEMENT. On the return from deployment, a deploying parent must notify the nondeploying parent of the date of his or her return, and the date he or she seeks that the temporary order for custodial responsibility terminate. If a permanent order regarding custodial responsibility exists, the deploying and nondeploying parents should discuss any transition needed to resume the prior custodial arrangement. In the event that the deploying parent is unable to locate the nondeploying parent, the deploying parent shall file a notice with the court of his or her return.

SECTION 402. VISITATION PRIOR TO TERMINATION OF TEMPORARY ORDER. If the resumption of the pre-deployment arrangement for custodial responsibility does not follow immediately on the deploying parent’s return from deployment, the nondeploying parent shall provide for liberal visitation of the child with the deploying parent until the time that the pre-deployment arrangement is resumed or a court of competent jurisdiction enters an order on custodial responsibility. Liberal visitation is not required in the event that the nondeploying parent reasonably believes that this visitation will cause the child irreparable harm.

SECTION 403. TERMINATION OF TEMPORARY CUSTODY ORDER. Any temporary custody order for custodial responsibility shall terminate automatically no later than [30] days after the deploying parent returns from deployment, or [30] days after the deploying parent notifies either the nondeploying parent or the court of the date of his or her return, whichever is later. However, in the event that either parent files a motion to prevent termination during that period on the ground that such termination is likely to cause the child irreparable harm, the temporary order shall not terminate automatically.

SECTION 404. EXPEDITED HEARING. Any motion by either parent to prevent termination of the temporary custody order that is filed within 30 days of the deploying parent’s return shall be heard by the court at an expedited hearing within [] days.

SECTION 405. STANDARD FOR RETAINING TEMPORARY ORDER. In the event that the court finds that the termination of the temporary order for custodial responsibility is likely to cause the child irreparable harm, the court shall order that the temporary order remain in effect until a hearing can be held on the issue of a permanent change of custodial responsibility. This hearing must be held within [30] days from the date of the court’s order extending the temporary order, unless the deploying parent consents to a longer period of time. Where a likelihood of irreparable harm to the child can be prevented through a gradual reversion to the previous custody arrangement, the court shall order such a transition period rather than retain the temporary order.

SECTION 406. AUTHORITY TO ORDER TRANSITION PERIOD. Where the court finds that an immediate return to the previous arrangement of custodial responsibility would not be in the child’s best interests, the court may order a transition period that allows a gradual reversion to that arrangement.

SECTION 407. SANCTIONS FOR BAD FAITH. If the court finds that a motion to extend the temporary order for custodial responsibility has been made in bad faith, the court shall assess the attorney's fees and court costs of the nonmoving party against the moving party.