Chairwoman Herseth Sandlin, Ranking Member Boozman and Members of the Subcommittee:

I am privileged to submit for the hearing record concerning H.R. 4469 this statement on behalf of the American Bar Association (ABA).  For more than 70 years, the ABA has been a defender of the legal needs of military families and an advocate for the principle that the answer to the call of duty should not unduly place our servicemembers’ rights at a disadvantage.   We support the position that deployment should not in and of itself serve as either the basis or justification for a military servicemember permanently losing custody of his or her child.  We must, however, respectfully oppose this legislation.  We do so for primarily the four reasons given below. 

Preliminarily, I would like to tell you something about myself.  For the purposes of this statement, I have been designated by ABA President Carolyn Lamm to share with you these views on behalf of the Association.  I am a matrimonial attorney in private practice with nearly 25 years of experience and particular expertise in the operation of state, federal and international child custody law.  I also hold a masters degree in Social Work with a clinical concentration in family and children’s issues.  My practice is devoted to complex international and interstate child custody cases, so by necessity my clients have included a significant number of servicemember parents and their families, whose circumstances frequently and unavoidably engender child custody disputes.  I have served as an instructor on these and related issues at the Judge Advocate General Schools of the Army and Air Force and the Naval Justice School for nearly a decade.  I am the current Chair of the ABA Family Law Section Military Law Committee, and had been appointed by the ABA President to serve on our Standing Committee on Legal Assistance for Military Personnel, where I served from 2002 to 2008 as both a member and a liaison.  In September of 2003, the ABA, recognizing the impact that the war and the unprecedented deployment and mobilizations of servicemembers would have on military families, sponsored a two-year study entitled “Working Group on Protecting the Rights of Service Members,” co-chaired by BrigGen David C. Hague USMC (ret.) and RADM John Jenkins JAGC, USN (ret.). I served as one of two family law practitioners on that Working Group.  I am happy to respond to any questions about my experiences, expertise or testimony.  Of course, my responses should be construed as my own views unless confirmed as the official position of the ABA. 

First, H.R. 4469, and related legislation in recent years, attempts to prescribe automatic substantive relief by utilizing the SCRA.  The Servicemembers Civil Relief Act (SCRA) provides an important legal process shield that allows our servicemembers to focus on mission and helps bring them and their fellow troops home safely.  We support the Act and its purpose.  However, we distinguish the subject matter of child custody disputes from other matters that are accorded automatic substantive relief under the SCRA, such as service and lease contracts.  Child custody matters must also contemplate the countervailing concern of the best interests of the child.  While we appreciate that this latest version of the legislation has incorporated explicit reference to “the interests of the child,” this does not cure our concern. 

Determining the best interests of minor children is a fact-driven determination, made on a case-by-case basis, often requiring the assistance of mental health professionals to guide and advise the parties and the court.  The court is bound, in addition to balancing the interests of the adult litigants, to independently protect the minor children who are the subject of the dispute.  For these and related reasons, child custody litigation is unlike other matters covered under the SCRA.  States, meanwhile, are acting in this area, providing superior relief than this legislation can offer.  We believe that the SCRA’s existing protections that provide objective procedural safeguards applicable to all cases (i.e., an automatic 90-day stay of legal proceedings), the opportunity to seek affirmative relief, and the additional substantive protections in place in more than 30 states and currently under review in most of the remainder, render this well-motivated but not well-considered legislation unnecessary at best, and harmful at worst. 

While there are variations among the states, the Uniform Law Commission has undertaken an expedited review of these issues to produce a comprehensive legislative package that all states may consider introducing or use to complement their existing laws in a manner consistent with their respective judicial systems and servicemembers’ needs. The state statutes in place and under review include a range of provisions well beyond the current legislation, including provisions for the delegation of visitation rights, arrangements for the temporary placement of children with grandparents, and the appointments of guardians ad litem for minor children whose parents are deployed, to name only a few.  One may argue that this federal bill only seeks to assure that there is a means to offer a minimum standard of care for all states through the SCRA.  However, we believe that while this federal legislation would still require a number of changes to provide such a standard for targeted cases, even then its enactment would function to discourage the rapid and innovative progress states have been experiencing in recent years.

Second, by amending the SCRA to accomplish its aims, H.R.4469 will unintentionally but surely introduce federal litigation to a matter reserved to the states and in which the federal government has no expertise.  In our view, this proposed law will result in considerable complexity, cost and delay without a foreseeable benefit for military parents at a time of their personal crisis.  Merely deeming federal question jurisdiction excluded in the legislation cannot avoid these problems.  Questions concerning the definition of terms of a federal statute or the application of its provisions in a given case are matters within the jurisdiction of, and reviewable by, federal courts.  Additionally, federal statutes such as 28 U.S.C. §§1331,1441, or 1442a may also make these matters removable to federal court regardless of the language in H.R. 4469.  The necessarily preemptive nature of federal law over all domestic family law, coupled with language that compels a specific remedy, insures that either parent would be able to seek the vindication of federal rights in the courts of the United States if they believed that federal law had been misapplied.

Third, H.R. 4469 only applies to certain child custody cases and claims, leaving the status of others in question.  The nature and extent of child custody disputes are as diverse as families themselves.  Preliminarily, it is arguable that the cases being advanced as evidence for the need for this legislation would not have benefited from its provisions.  The bill also does not seem to prevent someone from suing to change existing parenting orders due simply to a custodial parent’s deployment.  Ill-motivated and opportunistic litigants may always generate grounds to re-open and permanently change custody of a child, but the relief offered by this legislation focuses on only certain kinds of custody-related cases, includes only certain kinds of claims, and provides remedies only for servicemembers under certain conditions.  For example, this legislation would preclude relief for the National Guard mother who is deployed in Iraq and does not serve as the primary residential parent. Efforts by her ex-husband to restrict her custody rights, and prevent her physical and telephonic access to the children during her brief R&R leave would not be covered[i].   What if a servicemember was not deployed in support of a contingency operation as the proposed amendment requires, but was absent on an unaccompanied tour to Korea, or flying off an aircraft carrier in the Indian Ocean on routine deployment? What about dual military couples?

The unintended consequence of focusing on only one fact pattern among the universe of potential family law issues will encourage state court judges who are only now becoming facile with the SCRA to be reluctant in applying its protections to all cases, as required by its plain language. These are just a few reasons why these fact-driven cases do not lend themselves to inflexible results, no matter how well intentioned.  These matters are best reserved to the states where a trier of fact can consider all variables, consult with experts, require the production of all reliable information and testimony, and produce a result that insures the protection of the servicemembers and their families, as well as the needs of their minor children who are also bearing the harsh consequences of their parent’s heroic absence for the service of his or her country.  Accordingly, we urge you to oppose H.R. 4469, and instead to support the ongoing efforts in each of your states.

Fourth, H.R. 4469 proposes to wade into an area of domestic substantive law without the benefit of an informational record or expert views supporting its need or efficacy.  This hearing represents the first public discussion of this legislation since its initial introduction in 2007, despite the ongoing concerns and opposition expressed.  These and related matters have been subject to study by the ABA, in concert with military legal assistance, going back to January 2002 in anticipation of what we all expected to be increasingly complex deployment-related family law issues.  We have maintained vigilance over rising concerns and launched initiatives such as the ABA Pro Bono Project, which provides military legal assistance lawyers and their clients expert civilian counsel on complicated matters without cost.  Despite our work in this area, we recognize that there is no public record to ensure that the solutions proposed by this legislation are responsive to the issues and needs actually presented in these cases.  Accordingly, we have supported interim efforts such as Section 571 of P.L. 111-84, a congressionally-requested study of military child custody cases since 2003 that will include an analysis of state responses to these cases, and propose recommendations for further action.  We understand that the results of that study are expected within the next couple of months.  Action without the benefit of that study and its recommendations, and in the face of legal experts’ opposition, seems less than the collective best owed to our troops.

We are not alone in expressing troubled views over the legislation.  We are joined in our concerns by the Department of Defense, the National Military Families Association, the Uniform Law Commissioners, lawmakers and others.  To-date, this legislation has largely moved during nonpublic mark-up sessions of defense authorization legislation, as well as through its nonpublic conference committee deliberations, without a hearing or debate in committees of original jurisdiction until now.  While we do recognize that a version of this legislation had been approved under suspension of the rules in the 110th Congress, the language before you today is not the same.  In fact, the language of this legislation has changed repeatedly over multiple congresses since its original introduction, each version purporting to be the solution.  Despite this evolution in the language, our concerns have not been fully addressed, and to the extent that the desire is to amend the SCRA in this particular way, opening the door to federal litigation in child custody cases, our concerns will not be allayed.

Absent the benefit of the informed analysis of the Department of Defense study, Congress would be taking action in an area against expert advice as to foreseeable negative consequences to military parents and their children.  We urge you to tread lightly in this delicate and complex area of law, and instead urge you to support alternative proposals we and others believe will provide superior protections to our troops.  We stand ready to assist all who are interested in these matters. Like the sponsor of H.R. 4469, we have not been satisfied with the status quo, but we believe caring for our troops and promoting the stability of military families will require further work in this arena, work that is already underway.

Recommendation #1:  Allow the states to finish addressing a matter reserved to the states.  It may sound ineffectual to some with past experience with some matters, but with more than 30 states already taking some action, a dozen more considering proposals, and an expedited review by the Uniform Law Commission to help states understand how to tailor key protections to their jurisdiction, this is real, ongoing progress. 

Recommendation #2:  Improve the Family Care Plan instructions to, among other things, require advance coordination between both parents to make agreements clear and accordingly more legally enforceable.  This is already underway.  When the Navy improved its Family Care Plan process, an immediate reduction of these types of disputes resulted, preventing litigation and promoting a greater expectation and understanding of outcomes by all involved.

Recommendation #3: Collect data on the relevant case law and its projected impact on the courts and military families.  The Department of Defense study and recommendations are expected soon, and others are also focusing efforts in this area during a time that the Congress and the Administration are focusing attention and due resources for military families.  We have confidence that the Department study will produce thoughtful recommendations based on actual cases and informed by the technical operation of family law around the country.  If the report recommends action by Congress, we are ready to assist in that effort.

In closing, for the reasons stated above, we urge you to oppose H.R. 4469 and related proposals that fail to contemplate the concerns we raise.  We urge you instead to support ongoing efforts in the states and the Department of Defense to strengthen the rights of servicemembers in a comprehensive and targeted way, preventing unnecessary litigation in the first place.

[i] Forson v. Weldon FM-10-284-09 Superior Court of New Jersey ,(Hon. Ann R. Bartlett, preliminary decision decided January 21, 2010.)