New Bill May Change San Diego Custody Laws for Military Parents

April 20, 2012

We have previously blogged about the impact military orders can have on a San Diego parent in a child custody case. Recently, the House Armed Services Committee is considering ways to enhance the provisions in place that protect the parental rights of service members. The Servicemember Family Protection Act is designed to preclude family court judges from ruling against servicemembers based solely on a history of or future deployment in child custody cases. Originally introduced in 2008, the bill has passed the House of Representatives with support from both the Democratic and Republican parties but has repeatedly failed in the Senate. The Defense Department has rejected this bill in favor of passing similar legislation at the state court level.

Often in California child custody cases the family court judge will scrutinize a parent's absence from the child's life. However, servicemembers may be deployed for extended periods of time and have little to no contact with their children. The Servicemember Family Protection Act is intended to excuse a parental absence due to military orders. It is important to note that the bill will not give servicemembers any advantage in child custody cases or hearings, it will only function to remove the disadvantages servicemembers are facing in these proceedings.

Traditionally, deployment has been understood as the movement of military forces from one area to another or sending military personnel into a combat zone. The Servicemember Family Protection Act defines deployment much more broadly for the purposes of child custody proceedings. For the purposes of the bill, deployment would include humanitarian operations and unaccompanied oversee tours as well. The bill has been proposed as an amendment to the Servicemembers Civil Relief Act. The Servicemembers Civil Relief Act was passed as a federal law, which granted special rights to servicemembers who were part of a civil proceeding. In 2008, Congress extended these privileges of the Civil Relief Act to child custody cases. The bill now prevents family courts from making permanent changes to custody orders while a servicemember parent is deployed.

The proponents of the Servicemember Family Protection Act argue that the rights granted by the Civil Relief Act do not go far enough to protect the parental rights of servicemembers. Because family court judges have the power, upon return of a servicemember, to deny him or her custody rights based on his or her employment, the proponents contend a change is needed. This is the scenario discussed by our previous blog. A servicemember deploys and the child begins to reside with the other parent who is temporarily granted full-time custody rights. Upon return of the servicemember, the child is well settled into his or her new routine. Therefore, the family court judge is hesitant to return to the previous court orders in place before the deployment.

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In order to facilitate a smooth transition for the child when one parents leaves on a deployment, it is important for both parents to work together. The servicemember should communicate with the other parent regarding the terms of his or her deployment and attempt to make custody arrangements. A functioning co-parent relationship is key for parties furthering the best interest of the child in a custody case.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.