Relates to orders of custody involving a parent deployed to military service

Summary of Provisions: Sections one, two and three of the bill would amend Domestic Relations Law §§ 75-1 and 240(1)(a-2) and Family Court Act § 651(1) to prohibit a court from issuing a permanent order of custody to a non-custodial parent when the custodial military parent receives mobilization or deployment orders. These laws also would be amended to provide that mobilization or deployment of a Reserve Component service member shall not be a factor in determining a change in circumstances if a petition is filed to transfer custody away from the military parent, and that any such temporary custody order shall expire within ten days after the return of the parent from active military service, deployment or temporary assignment.

Existing Law: Under existing law, permanent custody orders are issued to the non-military parent upon mobilization of the custodial military parent, thereby forcing returning service members to petition to have their pre-deployment parental rights restored. Domestic Relations Law § 75-1 provides that when a custodial parent who is a member of the Reserve Component of the Armed Forces is called to active duty to serve his or her state or country, 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 upon the returning veteran to petition the Family Court to have his/her pre-service parental rights restored.

Prior Legislative History: This is a new bill.

Statement in Support: The United States Department of Defense (DOD) cites child custody issues for mobilized reservists as one of the Top 10 Quality of Life Issues for members of the Armed Forces of the United States. In February 2011, the DOD announced its support for federal military child custody legislation that would include provisions to: (1) preclude state courts from permanently changing custody while a military parent is deployed; (2) require resumption of custody upon the service member's return from deployment, unless the reinstatement of custody is not in the best interest of the child; and (3) bar state courts from considering a military parent's deployment, or the possibility of deployment, as a basis for determining the best

interest of the child in custody modification cases. Such a bill has passed in the U.S. House of Representatives, and sixteen states have child custody laws that meet the DOD's desired level of protection in military child custody cases.

New York Law does not currently meet the DOD standards, although legislation enacted in 2008 brought New York into partial compliance, before that law was amended in 2009. Chapter 576 of the Laws of 2008 was enacted to address concerns raised by custodial parents who were among the large numbers of Armed Forces Reserve Component military personnel (includes the National Guard and the Reserves of the Army, the Navy, the Marine Corps, the Air Force and the Coast Guard) mobilized after the September 11, 2001 attacks. These deploying service members raised significant concerns about the potential loss of child custody during their deployment. In response, Chapter 576 created Domestic Relations Law § 754, which as originally enacted required all orders issued in child custody and visitation proceedings involving a parent in active military service to be deemed temporary, set a clear and convincing evidence standard for the issuance of any temporary custody orders and further provided that, upon the return of the service member from deployed military service, either parent could petition the court on whether the previous order in effect should be changed or modified.

The following year, in Chapter 473 of the Laws of 2009, the new section 754 of the Domestic Relations Law was amended, and conforming, changes made to Domestic Relations Law § 420 and Family Court Act 651. Significantly, this legislation removed the requirement that all orders issued in child custody and visitation proceedings involving a parent in active military service be temporary, and added new language that, unless the parties stipulated to the contrary, a parent's return from active deployment in the military would automatically constitute a "substantial change in circumstance" that would allow either parent to obtain standing to request reconsideration of a prior custody or visitation order. This amendment, in effect, resulted in a permanent order of custody being awarded to the nonmilitary parent, and placed the burden of restoring the service member's pre-service custodial rights on the returning veteran.

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. Notwithstanding the Servicemember Civil Relief Act (SCRA) protections, the custody order petition moves forward in Family Court and the custody order is changed to the detriment of the deployed parent. The amendments enacted in 2009 made it easier for the non-deploying parent to file a petition for a change in custody. Under the 2009 legislation these changed custody orders are permanent and place the financial and emotional burden on the returning veteran to petition to have his or her pre-deployment parental rights restored.

This bill would reinstate the original provisions in the Domestic Relations Law that required all orders in custody and visitation proceedings involving a parent in active military service to be temporary, and would add a new provision requiring that all such

temporary orders would expire ten days after the service member's return from military service. It would allow the temporary custodial parent to petition for custody, and would preserve his or her right to raise a "best interest of the child" challenge, but the burden of doing so would not be on the returning service member.

Budget Implications: it is not anticipated that this bill would have a fiscal impact on the state judiciary's budget.

Effective Date: This bill would become effective 30 days after it becomes a law.