Remembering the Parental Rights of Armed Service Members Stationed Abroad
By ROBERT FRANKLIN, J.D.
With Independence Day at hand, it’s important to consider the issues that face our military service members regarding divorce and child custody. Put simply, when a member of our armed services is stationed abroad, his/her ability to defend or even take part in such a case can be severely limited. Existing protections for those service members are insufficient to avoid, in some cases, quite serious miscarriages of justice.
When a parent joins the armed forces, he/she is required to establish a parenting plan that takes effect in the event that person is deployed overseas. The plan identifies who is to be the child’s primary caregiver and also names backup caregivers in the event the primary one is unable to provide care for the child.
Deployments abroad can last for months or even years. Stateside, relationships subject to such lengthy separations can attenuate and breakdown. Divorce can be the result and child custody become an important issue between the spouses. For anyone, dealing with those issues can be traumatic; for the deployed service member, doing so at a distance of thousands of miles only makes a bad situation worse. If the member is deployed to a war zone, the stress of combat and the threat to the life and physical well-being of the member adds another level of trauma to his/her divorce case back home.
Now, it is the stated policy of this country and our courts that those who have “dropped their affairs to answer their country’s call” (Le Maistre v. Leffers, 333 U.S. 1, 6 (1948)) shouldn’t be penalized back home for doing so. Accordingly, federal law provides certain protections for service members in an array of civil matters, including divorce and child custody. Those protections come in the form of the Servicemembers Civil Relief Act, 50 U.S.C., § 3901-4043 (SCRA) that covers many different civil actions such as mortgage foreclosures, interest rates on loans, residential lease terminations and the like.
Supposedly, the SCRA requires that any child custody arrangement in effect at the time the service member was deployed should return to effect once he/she returns home. So, during deployment, temporary arrangements may be made for the care and custody of the service member’s child, but, once the member returns, that temporary arrangement dissolves and the previous one returns to effect. Again, public policy holds that no member of the military should be penalized for serving his/her country.
I say “supposedly” because the practice in state family courts often deviates from the theory embodied in the SCRA. That deviation typically stems from the same magic words we see so often in child custody cases – “the best interests of the child.” The SCRA states that the status quo ante the deployment should return to effect once the service member returns home unless the best interests of the child dictate otherwise.
What that often means in practice is that the parent who’s remained at home caring for the child has a marked advantage over the deployed parent when it comes to custody and parenting time decisions by a state court judge. After all, so the reasoning goes, the service member may not have seen the child except possibly by Skype, for as long as two years, so why should he/she have equal parenting time with the parent who’s stayed behind, changing diapers, feeding, reading to the child, etc.?
As elsewhere, the child’s “best interests” are often interpreted to mean marginalizing a fit, loving parent. That federal law and policy argue for the parental rights of the service member makes little difference to family court judges who often aren’t educated in the social science on the very matter on which turns every decision about custody and parenting time, i.e. the child’s best interests.
Fit, loving parents should never be marginalized in the lives of their children. Using a military deployment to do so not only harms children and the parents who serve their country abroad, but thwarts the clear spirit of the SCRA as well.
The burden of proof should be changed. The service member should not be required to demonstrate that his/her continued relationship with the child promotes the child’s best interests. The parent seeking to reduce or eliminate the parent-child relationship of the service member should be required to demonstrate that such a relationship would harm the child’s interests.
On this Independence Day, let’s remember the members of our armed services and resolve to make the SCRA a real protection for the parental rights of service members stationed abroad.
Robert Franklin, J.D. is a member of the Board of Directors of National Parents Organization. Robert is an attorney, writer and frequent contributor to the NPO blog.