Introduction

Thank you for the opportunity to testify today.  I appreciate being able to discuss H.R. 4469 with you.  I am a retired Army JAG colonel and the author of The Military Divorce Handbook (American Bar Association 2006). I have practiced law in Raleigh, North Carolina for over 30 years, and much of my work involves military divorce issues.  I have been a leader in the American Bar Association on military custody and visitation matters for over ten years, and in the North Carolina State Bar for 30 years.  I’ve helped state legislatures and bar associations with military custody and visitation bills in the states of Alaska, Washington, New Mexico, Iowa, Kansas, Ohio, Indiana, Mississippi, Alabama, Virginia, Vermont, Georgia, New Jersey and Rhode Island.  In the past 30 years, I have chaired the American Bar Association’s Standing Committee on Legal Assistance for Military Personnel, the Military Committee of the ABA Family Law Section, and the military committee of the North Carolina State Bar. I served on the ABA Special Committee on Protecting the Rights of Servicemembers, and I am now a liaison to the National Conference of Commissioners on Uniform State Laws on military custody and visitation legislation.

Today our deployed troops in Iraq, Afghanistan are fighting insurgents and suicide bombers on the battlefield and, increasingly, custody and visitation battles at home.  For many of them, obeying the call to duty (meaning mobilization for National Guard and Reserve personnel and deployment overseas for those on active duty) can mean visitation and custody problems on the home front.  I have been fighting this battle for servicemembers for most of the last decade, helping to create language and legislation for state legislatures to grant custody and visitation protections for our servicemembers.

All of this work was in the halls of state government.  It is not the province of Federal law to provide detailed and specific instructions on how to handle child custody cases, whether these involve custodial parents who are members of the armed forces, the State Department, the Central Intelligence Agency or the Federal civil service. Congress should not interject itself into writing rules for custody and visitation; this is the responsibility of state courts.  

Some say, “We have a national military–for that we need a national standard” for custody.  Not true. This simplified statement betrays a fundamental misunderstanding of the nature of our republic–50 states with their own laws, a Federal government for those powers set out in the Constitution.  If the “national military–national standard” argument contained any truth, then we’d have a national set of laws for servicemembers on drivers’ licenses, voting  requirements,  the age of majority, and a host of other issues. The truth of the matter is that Congress has always deferred to the governments of the 50 states to enact and apply appropriately crafted legislation in the area of domestic relations, even when it affects military personnel. There are 50-plus different laws on child support for military personnel.  Pension division upon divorce is a 50-state affair as well; the rules differ from place to place.  The rules also differ among the states as to what the courts may do with Survivor Benefit Plan coverage upon divorce.  States have always been solely responsible for the subject of custody and visitation in cases involving military parents. 

That would come to an end with the passage of H.R. 4469.  This radical revision of the Servicemembers Civil Relief Act (SCRA), which would apply only to the small number of single military parents who have custody of a child, would: 

• preclude courts from permanently changing custody while a military parent is deployed;
• require resumption of custody upon the servicemember's return from deployment, unless the reinstatement of custody is not in the best interest of the child; and
• bar courts from considering a military parent's deployment or possibility of deployment as a basis for determining the best interest of the child in custody modification cases.

All of these are admirable proposals, and ones which need to be added to the laws in those states “about a third of the fifty” that do not have such protections.  Most of the states already have legislation to protect military custody rights.  Our own North Carolina statute, Section 50-13.7A of our General Statutes, provides these and more protections for military members.  It’s there because of our efforts in the state legislature, and because that’s where it belongs–in a state statute, not in the Federal code.  Rep. Mike Turner’s heart may be in the right place; his custody bill is not.  Passage of H.R. 4469 would create serious and expensive trouble for troops, for children, for ex-spouses–all in the name of a principle to which we all subscribe, namely, protecting the rights of servicemembers and their children during deployment, mobilization and other military absences.

Congress should not be directing our courts, whether state or Federal, on how to look after the best interest of a child, and yet this is exactly what the proposed legislation does.  Our own Supreme Court stated:

The issuance of [custody] decrees . . . not infrequently involves retention of jurisdiction by the court and deployment of social workers to monitor compliance. As a matter of judicial economy, state courts are more eminently suited to work of this type than are Federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees. Moreover, as a matter of judicial expertise, it makes far more sense to retain the rule that Federal courts lack power to issue these types of decrees because of the special proficiency developed by state tribunals of the past century and a half....

Ankenbrandt v. Richards, 504 U.S. 689, 703-704 (1992)

Positive Results–A Majority of the States

Were the states failing to act in this area to protect the rights of servicemembers and their children, it would rightfully raise the ire of those in Congress, as well as the citizens who elect state and Congressional representatives.  That is not the case, however. The states can–and are–acting creatively to protect the custody rights of our mothers and fathers in uniform.  Today about two-thirds of the states–32 in all–have passed legislation, and about ten have bills pending, to provide significant protections for the rights of military personnel, all of them more extensive than the terms of H.R. 4469.  In just the first six months of 2008, for example, military custody bills became law in Iowa, Virginia, Mississippi, North Dakota and Kansas.  States which are currently working on military custody and visitation legislation include Alaska, Iowa, Ohio, Indiana, Alabama, Vermont, Georgia, New Jersey, Hawaii and Rhode Island.

Dire consequences would follow were Congress to intrude on the significant protections and creativity demonstrated by the states, thus stifling the unique initiatives that they have enacted for the protection of parents in uniform.  And the protections offered by state legislation are significantly better for military personnel than the terms of H.R. 4469.  Many state statutes provide for the use of electronic means of testimony for servicemembers.  Where is that in H.R. 4469?  They allow expedited dockets for those who wish to put their affairs in order before deployment.  They take into account mobilization for Guard/Reserve personnel, as well as temporary duty (TDY) when these situations mean an unaccompanied tour of duty. They deal with all forms of active duty, including humanitarian missions and remote tours of duty, not just contingency operations.  They mandate the availability of the child or children for visitation during periods of leave for servicemembers.  Where are those protections in H.R. 4469?  That’s why we need to leave the heavy lifting in this area to the states, rather than try to usurp their initiatives and trample on their laws.

And–most significantly–these state statutes and bills deal with the issue of visitation for servicemembers who do not have custody. This is an issue on which H.R. 4469 is silent, the visitation rights of military parents.  It’s completely left out of the bill, as if the drafters were not even aware that - of those servicemembers who have minor children–most are not custodial parents. The demands of military life generally require release of custody into the hands of the non-military parent.  By an overwhelming majority, the usual arrangement for single parents in the armed forces is visitation rights, not custody. According to Defense Department regulations, first-term single enlisted parents cannot have legal custody of a minor child. The states are well aware of these facts.  In addition to statutes allowing compensatory visitation for time lost due to military duties, many states are passing bills which let the judge delegate the visitation rights of a parent in uniform to a close family member if this is in the best interest of the child.  There are no rights for military parents with visitation rights in H.R. 4469.

Whether for custodial parents or visiting parents, the laws of about two-thirds of the states already provide strong protections and creative approaches to the rights of servicemembers.  And the continued efforts of the states should not be stifled by the application of rigid Federal rules nationwide for cases which are always unique on their own facts.  The passage of an overarching gridwork of Federal law in a field which has always been reserved for the states will completely destroy the initiative of those states which are considering initial legislation or thinking about improving their current laws to protect military members and their children. “Why bother?” they’ll say.  “Why make the effort, when Congress has already told us what the outcome must be, each and every time?  We know what Congress wants, it’s already in the Federal code. Why should we do anything more for military parents?”  The states are universally opposed to such legislation; a simple inquiry to the state bars and bar associations will provide the proof.  No one who is in charge of state custody laws wants a Federal statute which dictates custody outcomes.

The heavy-handed Federal intrusion set out in H.R. 4469 is a major mistake.  Why should any state participate in developing new bills and creative concepts (such as delegated visitation rights, visitation rights during mid-term leave, protections against waiver of visitation rights, and advance notice of military absence), as is occurring right now, when “Uncle Sam” can take over and just dictate the outcome? Congress should not place a roadblock in the path of states’ abilities to craft strong and creative protections.

This bill would not only wipe out any incentive at the state level to create or improve state laws for the protection of servicemembers.  It would also pre-empt, under the Supremacy Clause of the Constitution, the laws of the several states when they come into conflict with the strictures of H.R. 4469.  Any law which provides a different level of protection (other than a higher one) would be of no effect.  No state remedy would prevail when faced with the clear dictates of Federal law.

When it comes to prompting passage of certain laws on the state level, the United States Congress knows well how to encourage action by state legislatures. If that is what’s desired, there is a straightforward solution. In past years, the passage of the Uniform Interstate Family Support Act by all of the states, and the universal enactment of substantial child support reforms (including mandatory child support guidelines and expedited process for pending child support cases) were brought to fruition by the “encouragement” of Congress in the form of proposed withholding of IV-D funds from the states.

Twisting the Purpose of the Servicemembers Civil Relief Act

The American Bar Association, which opposes this bill, has long been a strong supporter of the SCRA as a vital shield that helps ensure servicemembers rights are not unduly prejudiced by virtue of their service.  The purpose of the SCRA regarding courts and litigation is to provide procedural protections (protection against default judgments, appointment of counsel, stay applications) for military personnel, not to grant them substantive rights regarding family law issues.  This bill goes against 70 years of history behind the SCRA and its predecessors.  The Act was passed to create a shield against default judgments, against judges who refused to allow continuances when military duties were involved, against unscrupulous creditors. It was not enacted to dictate the outcome in cases involving divorce and domestic relations. It should not be used for that now. Moreover, the bill would seriously weaken the broad protections of the SCRA, because only child custody matters will be deemed to have been intended to be addressed by Congress in regard to family law disputes. We should not run the risk of unintentionally undermining current SCRA protections.

Why the Opposition?

On four occasions since 2007 a bill has been introduced which would add custody terms for military parents into the U.S. Code.  And on four occasions Congress said NO.  Why?  Let’s take a look at who is in favor of custody protections for military personnel but opposes this bill.  Who has stood up to this bill and said it was a bad idea?

Senator John McCain–a staunch supporter of the rights of servicemembers - has led the way in refusing to sign on to the idea of changing the Servicemembers Civil Relief Act in so radical a way. In a letter of July 28, 2009 to Rep. Mike Turner, Senator McCain noted that:

Child custody laws and litigation, as you know, have traditionally been the province of the States. I suggest that we need to proceed with care in considering Federal legislation that would preempt the States in their approaches to the child custody issues you have identified.  Ihave been informed, for example, that 29 States have enacted laws providing guidance and direction to their own State courts about what standards to apply in cases involving military parents. I'm not convinced at this point that there needs to be a nationwide standard in view of the historical Federal deference to the State legislatures and the obvious concern that the States have shown about this issue.

I also have some concerns about the opposition that has been raised to your proposal from Associations with expertise in this area. The Senate Veterans' Committee, the committee with jurisdiction over the Servicemembers' Civil Relief Act, has opposed the legislation you have advanced. In addition, the American Bar Association, led by its Standing Committee on Legal Assistance for Military Personnel, issued a resolution in February 2009 that opposed modifying the SCRA in the way you have suggested.

The Department of Defense, also a strong advocate of protecting the rights of military personnel, has likewise stood up to H.R. 4469 in its previous versions.  Secretary Robert Gates, in a letter to Rep. Turner dated September 25, 2009, emphasized the positive actions which could be taken, and the lack of need for an amendment to the SCRA:

Our General Counsel has reviewed the various state law protections for Service members. We find that, at present, some level of protection for Service members facing child custody issues exists in approximately 28 states, but the states' approaches to the issue vary widely. Many of these variances no doubt reflect different societal dimensions of the problem in different communities across the country. Thus, we have concluded that it would be unwise to push for Federal legislation in an area that is typically a matter of state law concern.

However, we have identified a number of steps that the Department of Defense should take in this area:

First, I plan to personally contact the governors of each of the states that have yet to pass legislation addressing the special considerations of child custody cases in the military to urge them to pass such legislation. I will also ask the Chief of the National Guard Bureau to follow up with the Adjutant General of each of those states on the issue.

Second, we will include concerns over child custody matters on the list of the Department's 10 Key Quality of Life Issues that will be presented to governors, state legislators and other state officials. On September 22, a representative from the Department's Office of Legal Policy and an expert in military child custody cases met with each of the Department's ten Regional State Liaisons and discussed military child custody issues. These liaisons will now aggressively reach out to state officials whose legislatures have not addressed military custody concerns to provide them with appropriate and effective draft language. Further, the liaisons developed a general strategy for focusing on those states with the largest military populations. 

Third, I will ask the military service Judge Advocates General and Staff Judge Advocate to the Commandant to ensure they are doing all they can to work with the American Bar Association (ABA) to publicize, emphasize and support the ABA's national pro bono project. This project can provide our Service members free legal representation from some of the country's most accomplished child custody practitioners. The pro bono project is run in concert with judge advocates from each of the Services, who work closely with the ABA to ensure our Service members receive the best possible representation.

Fourth, the Department is engaged with the military services to update and standardize Family Care Plans (FCPs) across the services. FCPs are developed to ensure that families are taken care of during times of drills, annual training, mobilization and deployment. FCPs include provision for long-term and short-term care, care and support for children, and financial arrangements including power(s) of attorney. The Department has recognized that improvements to its FCP guidance can address many of the custody issues that otherwise too often result in litigation after deployment. By clarifying those who require a FCP and emphasizing the importance of custody negotiations with the non-custodial parent early in the process-before deployment-the issues that most often give rise to litigation can largely be avoided. The Department is convinced that these efforts can resolve far more issues in favor of our Service members than can new Federal legislation.

Why would the proponents of this bill ignore Secretary Gates?  It is the job of Dr. Gates to ensure that our military personnel have the resources and protections necessary to defend the nation.  Surely he should be granted some deference by Congress, since he is the single person in the nation whose responsibility it is to maintain the morale, fitness, and retention goals of our armed forces.  And yet the Defense Department opposes this bill.

Also opposed is the American Bar Association.  In Resolution 106, passed in February 2009, the ABA went on record as rejecting the ill-conceived ideas previous set out in H.R. 5658 in the 110th Congress, because this would–

• allow Federal courts to exercise jurisdiction in child custody cases, including matters which involve military parents
• dictate case outcomes in state child-custody cases
• run roughshod over the powers of state courts in custody cases involving servicemember parents, and
• pre-empt the growing body of state laws which comprehensively address servicemembers’ needs in the child custody area.

The ABA supports study of the problem of military custody and improvement of Family Care Plan regulations, as well as funding for enhanced legal assistance as an entitlement for military personnel.  The association supports the study of military custody issues mandated by Section 572 of the 2010 National Defense Authorization Act (report as to "all known reported cases since September 2003 involving child custody disputes in which the service of a member of the Armed Forces, whether a member of a regular component of the Armed Forces or a member of a reserve component of the Armed Forces, was an issue in the custody dispute").  And the ABA is on record as firmly opposing the denial of child custody to servicemembers based solely on their absence.

And finally, the bill is opposed by the National Military Family Association.  For over 40 years, the NMFA has been the only national military organization that has represented officers, enlisted personnel and their family members from all branches of the armed forces.  Its sole focus is the military family, and its goal is to create and support policies that will improve the lives of families in the military services.  Why has amending the SCRA in this way generated opposition from even the NMFA, if its purpose is purely beneficial? The NMFA, in a letter dated July 21, 2009 to Senators Benjamin Nelson and Lindsey Graham of the Senate Armed Services Committee, stated that:

We would also like to urge your support of the American Bar Association’s (ABA) Resolution 106 concerning child custody and servicemember-parents.  Based on our experience, we agree with the ABA that Federal intervention in what has traditionally been a state matter would be burdensome to the states would also go a long way in alleviating confusion and misconceptions about the Servicemembers Civil Relief Act.

Reasons for Opposition

The House should turn down H.R. 4469, a bill which would insert substantive custody provisions into the Servicemembers Civil Relief Act, including specific requirements for modification and enforcement of custody orders when a military custodian is deployed.  There are a few foolish reasons to oppose such legislation. I have encountered these while fighting for state legislation to protect our military personnel and their children.

One such reason is the argument that servicemembers do not need unique protections in custody matters, and that there is no reason for choosing a special group for protection in custody cases.  Those who argue in this way have no real understanding of the importance of military service–and the need to protect those who go in harm’s way–when they have children who are subject to custody or visitation orders back home.  They need and deserve our efforts to assist them–our best efforts.  That’s why I’m here to testify.

But just because there are foolish reasons to oppose this bill doesn’t mean that we should overlook the good reasons why it shouldn’t pass.  And there are many.

Welcome to the Federal Courthouse!

The worst of dire consequences is litigation of military custody in Federal court.  Imagine what would happen if litigants in military custody cases had another door open to them, namely, Federal courts. All of a sudden, making a Federal case out of it becomes a real option, not a mere throw-away phrase.

Do we want Federal judges trying custody cases?  Or Federal marshals sent to retrieve children from school to testify in court? What kind of budget would a servicemember (or a former spouse) need for Federal custody litigation?  Who will represent these servicemembers?  They are not entitled to the provision of legal representation in court for such cases by the military, so this will require them to hire additional lawyers for complex litigation in multiple courts and perhaps in multiple states.  The increased workload for our Federal trial-level judges and marshals is hard to imagine.  The increased cost for military single parents is obvious. If you think that these cases are expensive now, wait till you start talking to constituents who’ve been told by their domestic attorneys, “Now we’re in Federal court!”  Has anyone apprised the House Judiciary Committee of this tremendous expansion of Federal court powers?

It is well-settled that, where there is a specific remedy enumerated and prescribed by Federal statute, the litigant has the right to have that issue determined in the Federal courts.  Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 477, 77 L.Ed. 903 (1933): “Federal jurisdiction may be invoked to vindicate a right or privilege claimed under Federal statute.” Id. at 483. The Federal rights set out in H.R. 4469 will lead directly to Federal court involvement in military custody cases.

No Federal Right of Action…

Of course, some say that the bill is buttoned up and bulletproof on Federal litigation, since it contains a clause, Sec. 208(d), which asserts that “Nothing in this section shall create a Federal right of action.” Unfortunately, little thought went into the implications of opening up new Federal rights while trying to close the door on Federal remedies. The statement about not creating a Federal right of action means little, since there are several other ways that creative counsel can get a case involving Federal rights into the Federal courts. No one has examined these and, since this bill hasn’t been reviewed by the House Judiciary Committee, nobody has really thought through the issue of Federal court jurisdiction and the enhanced litigation that this bill would create throughout the nation in military custody cases.

Still Available–Removal and Other Remedies

For example, if counsel wants to avoid unpleasant results in state court, the procedure of removal to Federal court is the logical next step.  While H.R. 4469 doesn’t create a Federal right of action, it says nothing about the existing remedy of removal under 28 U.S.C. 1441.  That’s because nobody thought about removal. Such a transfer will add months and months onto the custody litigation, while a Federal judge decides whether to take the case or  remand it back to state court.  That’s months and months of time ticking against the servicemember who thought that H.R. 4469 was there to help him or her; now it’s the sole reason why counsel fees are spiraling out of control at the rate of $5-10,000 a month.  How does that protect Sergeant Jane Doe’s custody rights when she returns from deployment?  How will she afford litigation in two courts instead of just one?  Why would we want to open the door of Federal rights when it’s clear that a Federal remedy must be given to those who are protected by this law?  It’s simple: there’s nothing in H.R. 4469 which bars removal to Federal court.

While we’re talking about removal, why not look into a specific basis for removal jurisdiction?  It’s found in Title 28 of the U.S. Code, Section 1442a.  The statute provides:

A civil or criminal prosecution in a court of a State of the United States against a member of the armed forces of the United States on account of an act done under color of his office or status, or in respect to which he claims any right, title, or authority under a law of the United States respecting the armed forces thereof, or under the law of war, may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States for the district where it is pending in the manner prescribed by law, and it shall thereupon be entered on the docket of the district court, which shall proceed as if the cause had been originally commenced therein and shall have full power to hear and determine the cause.

Does this apply where a servicemember is sued for a change of custody?  Let’s set out the elements and analyze it:

• Sergeant Jane Doe has been sued in “a court of a State” regarding custody.
• She is “a member of the armed forces of the United States.”
• There is a case against her and it is a “civil prosecution.”
• And she would be relying on the rights prescribed for her; those rights, if H.R. 4469 were passed, would be in the Servicemembers Civil Relief Act.
• These rights are “under a law of the United States respecting the armed forces thereof,” since the Servicemembers Civil Relief Act is, of course, such a law.
• And thus the state court case may be removed into Federal district court, where the Federal judge would have full power to hear and determine the cause.

So we’re in Federal court, trying a custody case!  How’s that for a dire consequence of H.R. 4469?

When a servicemember’s case may be decided contrary to H.R. 4469, there is another remedy–a declaratory judgment suit in Federal court.  Such an action is brought under 28 U.S.C. 2201-2202.  It involves these elements: 1) a contested case, 2) within the jurisdiction of the Federal district court, 3) involving a declaration of the rights and other legal relations of any interest party, and 4) whether or not further relief is sought. This is another pathway to Federal court which H.R. 4469 would not limit.  Perhaps the proponents of this bill didn’t think of that.

Yet another portal of entry into the Federal courthouse is a civil rights action.  When a client believes that his or her civil rights have been violated by the other party in regard to the terms set out in H.R. 4469, a good lawyer would recommend suing in Federal court for a civil rights violation.  Such an action would be brought under 42 U.S.C. 1983. Once again, the bill would open the door to such a filing, based on the Federal “rights” granted in H.R. 4469.  But no one thought about that either.

Right Rules, Wrong Place

These problems and omissions in H.R. 4469 show clearly the error in trying to insert into the U.S. Code a set of rules for state custody cases when these issues should properly be left for state decisions; state lawmakers have far more knowledge about these matters than members of Congress, who have never before enacted substantive custody rules and placed them into Federal law. This bill is a significant departure from the long-standing case authority and congressional history against involvement of Federal courts and Congress in domestic relations matters.  It represents a huge expansion of the limited grant of authority to Article III courts under the Constitution, which restricts Federal judicial power to specified subjects such as interstate commerce, national defense and international matters.  This is a respectful acknowledgment of state laws and courts, which have preeminent powers and expertise in the remaining areas of litigation.

Why have the proponents pushed so hard on passage of this ill-advised usurpation of state laws and protections for military personnel, when they have consistently refused to work with the American Bar Association in fashioning any Federal alternatives to this legislation?  Why are we not spending the time to do something which might actually help military families, such as implementing the American Bar Association’s standing resolution to provide an entitlement to legal assistance for servicemembers and their families?  A Federal commitment to provide funding for attorneys at military bases would go a long way in giving real help to members of the armed forces who need it.  It would put on the front burner the important need for legal assistance at each post, camp or station around the world.  It would provide a first line of defense for the man or woman in uniform who needs the assistance of a lawyer with domestic problems and other matters.  Why not push for this remedy for all our men and women in the armed forces, rather than solving a non-problem for a small fraction of single parents?

Further Flaws

There are numerous other errors or limitations in H.R. 4469 which have been poorly thought through.  

• Contingency operations are covered. What about humanitarian missions?  Why should the troops involved in these be treated differently than those who are on contingency missions? 
• What about temporary duty, or TDY?  Why the different treatment of these troops?  Why are they not covered?
• And what about remote or any other unaccompanied tours of duty?  These troops should receive the same protections. Why did the proponents of this bill ignore them?
• Why is there no coverage for mobilization of Reservists in support of a deployment (“backfill”), taking these parents far from the children’s homes, but yet not sending them on a deployment? 

Where’s the Beef?

Some say that there are courts where judges are taking away custody from servicemembers based on their deployment. Let’s talk about that claim.  Where are the cases which would be “correctly decided” if H.R. 4469 had been enacted four years ago?  Or even last year?  What decisions would have gone the other way?  Too often supporters of this bill have given in to faddish pessimism and media-driven doubt, relying on unsupported claims rather than doing their homework.  It’s time to hit the “pause button” for a few moments.  What’s really happening “on the ground” and why do we need such a bill?  Where’s the problem?

There’s a saying, “When your favorite tool is a hammer, all your problems begin to look like nails.” That aptly describes the theory of H.R. 4469–create a solution, then search for a problem that needs such a remedy.  I’m familiar with all of the news-account cases on military custody. I’ve viewed most of the tragic stories about parents who face legal battles regarding custody which have ended up in the electronic or print media. I have been quoted in several of these stories, in fact.  It’s vital to take a long, hard look at the cases and individuals that proponents of this bill have claimed would have been helped if this bill were passed. Would H.R. 4469 have been the salvation of the military member in many of these cases?

The fact is that none of them would have benefited from this bill.  Not Lieutenant Eva Slusher in Crouch v. Crouch in the Kentucky Supreme Court.  She was not deployed, she was mobilized and stayed in Kentucky for 11 months; then she allowed another 7 months to elapse before she asked for the return of her child. At the time she was mobilized, the father had custody; court order stated that the child should “be allowed to reside with the Petitioner [appellee] until further Orders of the Court.”

Nor would this bill change the outcome for Tanya Diffin of Diffin v. Towne fame in New York.  The same is true for Lieutenant Colonel Vanessa Benson, whose case in Florida was largely resolved last December with a return order for the child was signed by the judge there.  The same applies to New Hampshire National Guard member Lisa Hayes, Army Reserve First Lieutenant Tira Bolder, Army Specialist Alexis Hutchinson at Ft. Stewart, Marine Corporal Levi Bradley, Specialist Lisa Pagan of Ft. Benning, and not Specialist Leydi Mendoza of the New Jersey National Guard.  If H.R. 4469 had been enacted four years ago, not one of these cases would have had a different result.  In reality, the problems which occasionally make the headlines are caused by poor lawyering, misuse of the SCRA and the rules of custody (to attempt to retain custody with a step-parent or grandparent, instead of the child’s other parent), or lack of training for the servicemember’s lawyer in the area of military custody and the SCRA.

Solutions Without Problems

The bill is a solution in search of a problem, and one that would cause dire consequences for troops, for their children and for ex-spouses in regard to child custody. The proposed legislation would not have the desired effect on servicemember custody disputes but would create unfortunate, costly and easily foreseeable new consequences in these cases.

The states have already taken this matter in hand by the rapid-fire enactment of strong and creative legislation to protect military personnel who have custody.  They continue to do so.  The bill would disrupt the carefully crafted state custody laws which are in place and which already provide a fair and even-handed system of handling child custody cases.  We want to encourage the states to continue the rapid pace of passing legislation that provides fully for the protection of servicemembers with custody, rather than ride roughshod over their efforts by passage of preemptive Federal legislation in an area which is inappropriate for Federal legislation.

In addition, the Military Committee of the ABA’s Family Law Section is working closely with legislatures and bar associations in those states which are still considering such legislation.  Last year we posted a guide on how to write a military custody statute on the Committee’s website, which is an open web resource available to anyone, regardless of membership in the ABA.

And finally the National Conference of Commissioners on Uniform State Laws (NCCUSL) has just designated a project for the drafting of a model act for military custody and visitation protections.  The issues expected to be covered include all three terms in H.R. 4469, as well as numerous other protections for the troops and their children, as outlined above in this testimony.  The first meeting of the committee is in April.  

Significant steps have been taken by the states, with about two-thirds responding to the call already. The American Bar Association and NCCUSL are also leading the way in creating legislation to protect military personnel.  The bill contains major flaws and would lead to a major intrusion into Federal court for troops and ex-spouses, difficulties which would cost them dearly in time and money.  This Subcommittee should reject H.R. 4469.