A legal note from Marshal Willick about how the federal government should not try to micro-manage State family law in the guise of amendments to the Servicemembers Civil Relief Act.
Some bad ideas just refuse to go away. This is one of them. The issue is important enough to merit each concerned recipient of this note sharing that concern with his or her Senators – the only ones who can still prevent the problem from occurring.
I. BACKGROUND: SERVICE MEMBERS, CHILD CUSTODY, AND THE LAW
In July, 2011, legal note No. 42, “New Military Custody/Visitation Law, and the Purpose of These Newsletters,” described in detail Nevada’s AB 313, which went into effect October 1, 2011. The new law modified multiple provisions of Nevada child custody law to ensure ready court access for full participation of military service-members, and to ensure that deployment, per se, was not used as the basis of adverse custody and visitation orders.
Along the way, that note detailed the limited extent of the actual problem, and expressed concern with the political grandstanding of certain legislators perfectly willing to subordinate the best interests of children and ignore the wise tradition of leaving regulation of family law to the States, in favor of their own self-aggrandizing pretense of “looking out for the troops”:
In the meantime, Rep. Mike Turner of Ohio has figured that he can score political points by trying to engraft specific child custody laws for military members onto the Servicemembers Civil Relief Act of 2003 (SCRA), despite the fact that the ABA, the AAML, and a host of other organizations that have looked at the matter have protested that federalization of family law is a rotten idea for many reasons, including that it is unnecessary, invades traditional State law, and if passed would harm the people it purportedly was proposed to assist.
In fact, the U.S. Senate directed the Department of Defense to investigate whether there was any legitimate basis for such legislation to be proposed. That study, completed two years ago, found “no judicial trend and no reported case suggesting that service members are losing custody of their children solely because of their military service.”
The purpose of the SCRA is to enable servicemembers to devote their entire energy to the defense needs of the country, by providing for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of the members during their military service. See 50 U.S.C. App. § 502.
Briefly, the act requires certain mandatory or permissive stays, and for appointment of counsel in certain circumstances, for members unable to attend to civil court cases because of their military duties. See “A Judge’s Guide to the Servicemembers Civil Relief Act.” Since its first iteration most of a hundred years ago, the act has never purported to set up separate substantive legal standards to be applied to any cases, including family law cases.
Politicians such as Mr. Turner are not in the habit of letting fact, law, logic, or the actual best interests of society interfere with their political agendas. Having been informed by the most knowledgeable people in the United States that his proposal was not just unnecessary, but would be counterproductive and injurious to the people it purports to help, Mr. Turner (of course) continued pushing it anyway.
This time around, he got the House of Representatives to vote overwhelmingly in favor of his proposed amendment, embodied in H.R. 4201, the so-called “Servicemember Family Protection Act.” It is now headed for the Senate.
II. WHY IT’S A ROTTEN IDEA
H.R. 4201 states that its only purpose is to prohibit family courts from using deployment as a factor in determining child custody rights.
As reporter Tom Philpott succinctly put it in his June 7 article in his weekly Military Update column, Turner phrases the issue as “Service members should not have to worry while they’re deployed, or facing a future deployment, that their service to country might cost them the custody of their children,” to which question Philpott adds “Who could disagree?”
Addressing his own question, the reporter noted that the answer is pretty much everyone who understands the issue, including the ABA, the AAML, the National Military Family Association, and Defense Secretary Leon Panetta, since what the reporter called “sound-bite rhetoric” like the above false framing by Mr. Turner ignores the actual ramifications of the proposal.
A. WHAT THE PROPOSAL WOULD ACTUALLY DO
The proposal would amend the Servicemembers Civil Relief Act (SCRA) in such a way as to create a federal law of military child custody. It would declare that courts cannot enter permanent custody orders while a custodial parent is on deployment in support of a contingency operation, that deployment may not be the sole factor in modifying such a parent’s custody rights, and that upon return of the military custodial parent, custody must be given back to him or her. All of which would be mandated by federal law, irrespective of the facts of the case.
B. WHY THAT IS A BAD IDEA
1. IT IS UNNECESSARY
The proposed federal legislation is a solution in search of a problem. There is no reported case in which a servicemember has been denied custody initially due to deployment or has lost his or her custody rights upon return from deployment for that reason. The few anecdotal reports that Turner trots out when challenged apparently would have turned out the same way with or without his proposed legislation.
It is hypocrisy to back legislation for the purpose of “protecting our troops,” when the reality is that there is no actual problem that would purportedly be solved by such legislation.
2. CUSTODY IS AND SHOULD REMAIN A MATTER FOR STATE LAW
There is “no single national standard” for the return of custody after a deployment, nor should there be. Throughout the history of the United States, matters such as grounds for divorce, and child custody, visitation, and support have been left to the States, which have vastly more expertise than do the various committees in Congress. It is not the province of federal law to provide detailed and specific instructions on how to handle child custody cases, whether or not those cases 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.
The United States Supreme Court has declared as a fundamental principle of federalism that:
The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States, and not to the laws of the United States.
Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S. Ct. 802, 808, 59 L. Ed. 2d 1, 10-11 (1979), quoting In re Burrus, 136 U.S. 586, 593-94, 10 S. Ct. 850, 853, 34 L. Ed. 500, 503 (1890). This is not a principle to be lightly thrown away, especially in service to a proposed “solution” to a non-existent problem.
Mr. Turner’s argument about a national standard for custody ignores the facts and betrays a fundamental misunderstanding of the nature of our republic: 50 states with their own laws, and a federal government for the powers set out in the Constitution.
If the “national military – national standard” argument had any validity, then we would have a superseding national set of laws for servicemembers on voting requirements, child support, the age of majority, gambling and drinking, and a host of other issues. We don’t – and we shouldn’t.
The service of military members should be accommodated wherever possible – that is why there is special legislation governing re-employment of those called up for service. But in no way should we create a class of citizens having superior substantive rights. That is the basic reason for the opposition stated by the Secretary of Defense: nothing should purport to supplant the best interest of the child as the polestar for child custody decisions in family courts.
This dispute fits into a larger picture of legal philosophy. Those of us active in ABA family law circles for many years have tracked increases since the 1980s in both “nationalization” and “federalization” of family law.
Nationalization is actually a pretty good idea, as the law of the 50 States evolves in such a way that the concept of substantial justice coalesces around increasingly-similar balancings and mechanisms as the States address a very mobile population. It is why the last of the “title property” States altered their laws to “equitable distribution,” which ever-increasingly resembles a community property understanding of the marital estate.
Federalization, however, is much more problematic, since top-down imposition of federal regulation onto State court systems has the potential to cause as much injustice as it might alleviate. Particularly hazardous is any proposal – like Turner’s – which would treat similarly situated people differently based on factors having nothing to do with the actual proper subject matter of the suit – such as having different standards for respecting the best interest of a child depending on whether one, the other, or both parents wear a uniform or dress suit to work.
3. THE STATES HAVE DONE MORE FOR SERVICEMEMBERS, AND BETTER
The reality is that the States have dealt with the issues surrounding child custody and visitation relating to servicemembers more than adequately. Already there are substantial protections for servicemembers in about 40 states, including Nevada, with bills pending in several others.
The statutes passed in a majority of the States are far better than Mr. Turner’s proposed SCRA amendments, because they deal with the issue of visitation for servicemembers who do not have custody. By an overwhelming majority, the usual arrangement for single parents in the armed forces is secondary custody (access or visitation rights), not primary physical custody. The demands of military life generally require release of primary physical custody to the non-military parent. According to Defense Department regulations, first-term single enlisted parents cannot have 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 have enacted statutes letting judges delegate the visitation rights of a parent in uniform to a close family member if this is in the best interest of the child. This is an issue on which the Turner bill is silent; it contains no protections for military parents with visitation rights – which are the great majority of all military parents.
The Uniform Law Commission’s model legislation is expected to provide far more comprehensive protection for military personnel than would be provided under the proposed federal legislation – preventing loss of custody due to any form of military absence, not just “deployments,” and incorporating the other protections that have been developed in the States, which are accustomed to handling the competing interests at play in all matters of family law.
Specifically, many State statutes provide for the use of electronic means of testimony for servicemembers. 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 deployment (“contingency operations”). These State statutes mandate the availability of the child or children for visitation during periods of leave for servicemembers. All of these concepts are missing from the Turner bill.
Congress has always deferred to the States to enact appropriately crafted legislation in the area of domestic relations, whether those laws affect military personnel or any other federal employees. There are 50-plus different laws on the custody, visitation, and support of children of military personnel and non-military citizens alike. Congress should not be directing our courts, whether state or federal, on how to look after the best interest of a child, which is exactly what the proposed legislation purports to do, and certainly should not be directing a different standard to be applied to some children than others based on what their parents do for a living.
The U.S. Supreme Court has noted that as a matter of judicial economy, State courts are eminently more 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. See, e.g., Ankenbrandt v. Richards, 504 U.S. 689, 703-704 (1992). As the Court noted there, “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.”
4. THE PROPOSED FEDERAL LAW WOULD BE COUNTERPRODUCTIVE
Congressional intrusion into the significant protections and creativity demonstrated by the States would stifle moves to enact initiatives for the protection of parents in uniform. In a supreme irony, if Turner was successful in amending the SCRA, it would be possible to argue that superior protections already provided by State legislation had been overridden as a matter of federal preemption, thus undercutting measures taken for the benefit of the very people that Turner claims to be trying to help.
In other words, the mere existence of the federal legislation could actually stymie development of better protections for military personnel that would otherwise be enacted by the States, directly or indirectly.
Perhaps the worst of the quite predictable dire consequences of Turner’s proposal is litigation of military custody in federal court. It is hard to imagine a more destructive influence on military families – and on the federal courts – than creating an alternative federal forum for litigants in military custody cases.
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. See 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”). Mr. Turner’s vague blandishments that no such federal court litigation will occur are not particularly persuasive.
The federal rights set out in the Turner bill will lead directly to federal court involvement in military custody cases. Despite a clause claiming that “Nothing in this section shall create a Federal right of action,” the bill says nothing about presently existing rights of action, and there are several ways that creative counsel can get a case involving federal rights into the federal courts. For example, removal under 28 U.S.C. § 1441 or 28 U.S.C. § 1442a; a declaratory judgment action in federal court under 28 U.S.C. §§ 2201-2202; or a civil rights action against the other party in the lawsuit, brought under 42 U.S.C. § 1983.
Do we really want federal judges trying custody cases? Most family law attorneys would say “no” – a view that I know from personal conversations is very much shared by pretty much every judge on the federal bench.
And then there is the matter of cost, and delays. Those that think that custody litigation is expensive now would be appalled at the increased budget required by every servicemember and opposing party for federal custody litigation. Even an attempt of removal to federal court will add months and months to custody litigation, while a federal judge decides whether to take the case or send it back to State court – while counsel fees spiral out of control for all involved.
III. WHAT TO DO ABOUT IT
In an election year, appealing to the wisdom of a divided legislative chamber seems a bit quixotic, but that is where we are. The problems and omissions in Mr. Turner’s bill show clearly the error in trying to insert into the U.S. Code a set of rules for State custody cases. Family law should properly be left to State lawmakers, who 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, and should not do so now.
The Turner proposal would make a significant and radical departure from the long-standing case authority and congressional history against involvement of the federal government in domestic relations matters. It would represent a huge expansion of the limited grant of authority to Article III courts under the Constitution, and it would hurt the very people it purports to be trying to help.
In short, there is no valid reason to enact Mr. Turner’s proposed legislation, and a host of good reasons to oppose it. Anyone reading this who might have access to a Senator, or Senate staff, should consider sharing that reality with folks that might have a chance to block the proposal, before we find ourselves asking why “nobody did anything” before this particular piece of the law was screwed up.
The statutes enacted by Nevada and other States preserve the priority of the best interest of the child while providing protections and accommodations to military members as possible and necessary to preserve their relationships with their minor children.
The federal government is not well-suited to addressing child custody law. Attempting to replace the best interest of the child with any other primary objective is a lousy idea in any case, and the particular iteration suggested by Mr. Turner would cause lots more harm than good, interfere with State protections already in place, and hurt the very people it is supposedly attempting to help, plus an unknowable number of children.
It is, in a word, stupid legislation, and “stupid” should be opposed, even when it is wrapped in a flag. The Senate should – again – reject Mr. Turner’s attempt to create a federal law of child custody for some people, as the very bad idea that it is.
V. QUOTES OF THE ISSUE
“Just because you do not take an interest in politics doesn’t mean politics won’t take an interest in you.”
– Pericles (430 B.C.E.).
“I don’t mind what Congress does, as long as they don’t do it in the streets and frighten the horses.”
– Victor Hugo (1802 – 1885).
“This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer.”
– Will Rogers (1879 – 1935).
For more on the Nevada law governing child custody and visitation, go to http://willicklawgroup.com/child-custody-and-visitation/. For the archives of previous legal notes, go to http://willicklawgroup.com/newsletters.
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