A bill aimed at protecting service members from losing custody of their children due to their impending deployment passed the House overwhelmingly earlier this year, but critics claim the bill is unnecessary and could muddy the waters of child custody law.
The bill has the stated purpose of barring any court from considering a military parent’s deployment in the custody decision. But critics of the bill say that the unintended consequences could be far more troublesome than the noble purpose its sponsors espoused in at least two ways.
First, the bill creates a federal right of action for custodial military parents, which would allow any aggrieved service member to file a federal court case. This could create more expensive litigation for the family and may end up with a review by a federal judge without family law experience.
The second issue is that the best interest of the child, which has long been the foundation of child custody jurisprudence, could be overshadowed by the military custodial parent’s best interests.
Others have asked whether the bill is even necessary, as evidence from a Department of Defense study suggests otherwise. The study found that there was no identifiable trend that indicated service members were coming up short in custody battles solely because of their official obligations. Furthermore, 40 states currently have legislation stating that deployment cannot be used as the sole factor in a child custody decision, so creating a federal cause of action simply to ensure that the other 10 states fall in line may be somewhat heavy-handed.
In child custody cases, nothing should ever supplant the best interests of the child as the most important deciding factor, and this bill should be carefully scrutinized for its potential to reshape the landscape of child custody law for the worse.
Source: The Daily Herald, “Military child custody bill has its detractors,” Tom Philpott, June 11, 2012