Servicemembers Civil Relief Act Proposed Amendment

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Issue: Servicemembers Civil Relief Act Proposed Amendment

Impact:

The proposed legislation would pre-empt state law relative to custody disputes involving servicemembers deployed in support of a contingency operation.

Position:

Court leaders oppose the legislation based on federalism concerns (CCJ/COSCA resolution 10-A-1)

Summary:

Representative Michael Turner (R-OH) has repeatedly introduced legislation to amend the Servicemembers Civil Relief Act to provide for protection of child custody arrangements for parents who are members of the Armed Forces deployed or expected to be deployed in support of a contingency operation.  The legislation would pre-empt state law related to modification of custody and visitation.

The Department of Defense (DOD), the National Governors Association, the Uniform Law Commission, and others have gone on record opposing the legislation.  The following statement was included in testimony submitted by the DOD to the House Veterans' Affairs Subcommittee on Economic Opportunity on 2/15/10.

“Federal efforts to legislate matters of child custody would disrupt State domestic schemes; discourage passage of broader, more helpful State laws; increase cost, delay, and uncertainty due to increased Federal oversight of the State courts.” 

Further DOD stated that more than 30 states “have already passed legislation addressing the special circumstances facing military parents”.  Through its State Liaison program, DOD has contacted the remaining states in an effort to address the issue in state law. 

Status:

In spite of the opposition to the legislation, the House Veterans' Affairs Subcommittee on Economic Opportunity voted to forward H.R. 4469 to the full Committee on 7/15/10.  H.R. 4469 died when the 111th Congress adjourned. 

The House approved the National Defense Authorization Act of Fiscal Year 2012 (H.R. 1540) on 5/26/11 by a vote of 322-96.  Section 208 of the Act would (1) restrict temporary custody orders based solely on deployment or anticipated deployment, (2) exclude parental absence based on deployment or possible deployment in determining the best interests of the child in permanent orders to modify custody, (3) make clear that the provision would not create a federal right to action, and (4) would not preempt state law if the applicable state law involving a temporary order provides a higher standard of protection for the servicemember.  This provision was introduced by Representative Michael R. Turner (R-OH), now Chair on the House Armed Services Subcommittee on Strategic Forces.  On the Senate side, Senator Carl Levin (D-MI), Chair of the Senate Armed Services Committee, introduced the Senate version of the National Defense Authorization Act (S. 981) on 5/12/11, which did not include a child custody provision.  Congress approved HR 1540 on 12/15/11 and the President signed the measure (PL 112-80) on 12/31/11.   The final measure did not include the child custody provision. 

On 3/16/12, Representative Turner (R-OH) re-introduced his legislation (HR 4201).  On 5/30/12, the House approved HR 4201 by a vote of 390-2.  This is the seventh time that the House has passed some version of this legislation. 

The Uniform Law Commission (ULC) appointed a drafting committee to develop a uniform Act to address this issue.  The Uniform Deployed Parent Child Custody Act was approved by the ULC membership on 7/14/12. The uniform Act has been approved in Colorado, Nevada, North Dakota. In 2013, the Act has been introduced in Alabama and the District of Columbia.