Chairwoman Herseth Sandlin and Members of the Subcommittee, thank you for extending the invitation to the Department of Defense to address H.R. 3976 and H.R. 4469.  

H.R. 3976

This bill would amend Section 2203(c)(2) of the Housing and Economic Recovery Act of 2008 (HERA) (Public Law 110-289) by extending the sunset provision of the foreclosure protections of section 303 of the Servicemembers Civil Relief Act (SCRA), Public Law 108-189 (2003) (50 USC App. §§ 501-596) from January 1, 2011, to January 1, 2016.  Currently, a servicemember’s obligation on real or personal property secured by a pre-service mortgage or mortgage type obligation may not be foreclosed on for nine months after leaving active duty, absent a valid court order.  Also certain delay provisions for court actions involving such mortgages are also in effect for the same nine-month period.  Under the proposed change, these nine-month periods would not revert to the previous 90-day periods until January 1, 2016.  

 The Department supports H.R.3976. 

H.R. 4469

This bill would add new sections to the Servicemembers Civil Relief Act (SCRA), Public Law 108-189 (2003) (50 USC App. §§ 501-596) and establish one-size-fits-all Federal child custody legislation.  The Department opposed similar legislation in the FY08 and FY09 House National Defense Authorization bills and formally appealed identical legislation in the FY10 House National Defense Authorization bill.  Although we appreciate the goals of this legislation, and the efforts of its proponents to support our servicemembers, our concerns and opposition remain. 

Federal efforts to legislate matters of child custody would disrupt State domestic schemes; discourage passage of broader, more helpful State laws; and increase, cost, delay, and uncertainty due to increased Federal oversight of the State courts.  The Department recognizes the complexities of such cases and the difficulties in balancing the interests of the servicemember against the best interest of the child, as impacted by the parent's absence due to military service.  The Department believes that the States are in the best position to balance these interests within the context of their own domestic relations laws.  

The Department applauds the efforts by the more than 30 States that have already passed legislation addressing the special circumstances facing military parents who have dropped their own affairs to take up the burdens of the nation.  Working through its State Liaison program, the Department can report remarkable progress just since last September: about 15 of the remaining States are currently actively considering specific military specific child custody legislation and there is general interest in similar legislation in several more States.

Apart from the disruption to the State laws already in effect and those currently under consideration, the risk of requests for Federal court oversight of the State implementation of Federal child custody law creates an unacceptable risk of stress and disruption for our servicemembers who would face increased cost, delay, and uncertainty in litigating these matters both in State and Federal court.  Such stress, cost, and disruption would exacerbate already difficult circumstances.  

In addition, H.R. 4469’s focus solely on “judgment cases” (i.e., where custody has already been granted by a court) brought during a contingency operation is arbitrarily narrow and would be better handled by the Department’s ongoing efforts to redraft its Family Care Plan (FCP) Instruction.  The Department has recognized that improvements to its FCP Instruction can address many of the issues that otherwise might result in custody litigation arising after deployment.  By expanding the categories of servicemembers who require an FCP and emphasizing the importance of custody negotiations with the non-custodial parent early in the process before deployment, the risk of litigation can be greatly lessened.  The Department is convinced that these efforts, in conjunction with the significant protections already available under the SCRA and provided by the States, will resolve far more issues in favor of parents who are Servicemembers than will additional Federal legislation—and will do so without the risks discussed above.