By Tom Philpott
Legal experts and military family advocates saw their advice ignored again this year when the U.S. House again 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 390-2, passing 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.
They argue that his Servicemember Family Protection Act (H.R. 4201), which passed the House both as a stand-alone bill and as part of the fiscal 2013 defense authorization bill, would needlessly create a right of federal court review in military custody cases. This would drive up legal costs for families, bring custody disputes before judges having no family law experience, and tip outcomes in favor of service members over the interests of their children, these critics contend. They are wrong, Turner said.
“In order to be against this you would have to argue it is acceptable for a judge to take a child away from a service member because they have been deployed,” Turner told me. “This legislation is very simple. It states unequivocally that a judge cannot use deployment or future deployment against a service member in a custody battle. … It does not relate to other matters that might come up in a normal custody case. It will not give service members an advantage, it just takes away the disadvantage from service.”
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. … The best interest of the child should always be the highest priority in child custody cases,” Panetta said.
Turner, a five-term congressman whose district includes Wright Patterson Air Force Base, has coaxed, harangued, some say even bullied colleagues, defense officials and service associations into supporting his bill, always citing the same few cases of members who lost or nearly lost custody of children following deployment or temporary stateside reassignment.
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. The Defense Department 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 Sullivan. He is a retired Army judge advocate general who wrote the military child custody and visitation law for his home state of North Carolina and has practiced family law for four decades.
“Although Mr. Turner has been to law school, his legislation does not show recognition of the fact that when you create federal rights, you also create a right that can be enforced in a federal court room,” Sullivan said.
Kelly Hruska with National Military Family Association said NMFA opposes Turner’s bill because of the risk to families of custody cases landing in courts with no family law expertise. Also, she said, states recently have done “back flips” to reform child custody laws affecting the military, in part, perhaps to avoid the federal remedy sought by Turner.
“Currently 40 states have passed legislation that says deployment cannot be used as the sole factor in custody issues,” Hruska said.
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