Relates to orders of custody involving a parent activated, deployed or temporarily assigned to military service

Summary of provisions

Section 1 of the bill would amend Domestic Relations Law ("DRL") §75-1 to authorize the Family Court to issue only a temporary order of custody to a non-custodial parent when the custodial military parent receives mobilization or deployment orders. The temporary Family Court order would end no later than 10 days after the parent's return from ordered military service and the original order of custody to the custodial military parent would be reinstated. The mobilization or deployment of a reserve component service member could not be a factor in determining a change in circumstances if a petition is filed to transfer custody away from the military parent.

Section 2 of the bill would amend DRL §240 (a-2) to make conforming changes to those amendments made in section 1 of the bill.

Section 3 of the bill would amend Family Court Act ("FCA") § 651 (f) to make conforming changes to those amendments made in section] of the bill.

Section 4 of the bill provides for an effective date of 30 days after enactment

Existing law

Under existing law, permanent custody orders are issued to the non-mili- tary parent upon mobilization of the custodial military parent, thereby forcing returning service members to petition to have their pre-deploy- ment parental rights restored. Under DRL § 75-1, when a custodial parent who is a member of the reserve component of the armed forces is called to active duty, the non-custodial parent, upon petition, may receive a permanent order of custody. The law, in effect, terminates the military parent's custodial rights and privileges based solely on military service. Though the existing law provides that the service member's return from active duty automatically constitutes a "substantial change in circumstance" that would allow either parent to obtain standing to

request reconsideration of a prior custody or visitation order, this nonetheless places a significant financial and emotional burden.

Prior legislative history

This is a new bill. As background, a law was passed in 2008 requiring that all custody orders made because of military service be temporary. Upon the service member's return, and upon a request by either parent, there was a hearing to determine whether there was a change of circum- stances such that the original custody order should be changed. This was prompted by reports that custodial parents were losing custody of their children while they were deployed.

In 2009, upon recommendation by the Chief Administrative Judge and Office of Court Administration, the law was changed to its current state which permits permanent orders, but allows for either parent to petition to change the order, thus placing the burden on the returning parent to change the order.

Statement in support

The United States Department of Defense cites child custody issues for mobilized reservists as one of the top quality of life issues for members of the Armed Forces of the United States. Currently 16 states, excluding New York, have child custody laws that meet the Department of Defense's desired level of protection in child custody cases.

Experience in the New York National Guard indicates that often, when a custodial parent service member is called away on active duty, the other biological parent seeks custody of the child. The proceeding frequently occurs soon after the service member leaves the country on deployment. Ultimately, the law places the financial and emotional burden on the returning veteran to petition to have their pre-deployment parental rights restored.

There is pending federal legislation that would accomplish similar ends and preempt state law which has passed the House and is supported by the Department of Defense.

Budget implications

None.

Effective date

The bill would take effect 30 days after enactment.