With recent legislation that was unanimously passed by the Pennsylvania House of Representatives and Senate and went into effect in June, SB 1167, Pennsylvania is now among the growing number of states in the nation granting extraordinary child custody rights to deployed military parents. For several years, states, including Pennsylvania, have been enacting laws in an effort to protect military parents from losing custody of their children because of their decision to serve the country.
Child custody rights afforded to military parents vary considerably from state to state and may include: (1) a restriction on change of custody during deployment; (2) reinstatement of custody rights upon return; (3) not having deployment considered in the determination of a child's best interests; (4) not having a failure to personally appear in court during deployment be the sole reason for modifying custody; (5) expedited hearings; (6) electronic hearings; and (7) assignment of custody rights to family members during deployment.
In 2008, Pennsylvania created Section 4109 of the Military and Veterans Code, 51 Pa. Cons. Stat. §4109, which provided deployed military parents with the first four of these rights. This year, Section 4109 was amended to include the right to petition to assign temporary child custody to family members, and Section 4110 was added to give deployed military parents the rights to both expedited and electronic hearings.
Restriction on Change of Custody During DeploymentThe right of a military parent to not have a child custody order entered or modified if a petition is filed during his or her deployment, 51 Pa. Cons. Stat. §4109(a), has been Pennsylvania law since 2008. The purpose of this law was to prevent a military parent from returning home after deployment with no custody or less than he or she had before deployment. But this right is not without exception. The statute explicitly permits a court to enter a temporary custody order during deployment if it is in the best interests of a child.
Reinstatement of Custody RightsIf a temporary child custody order is entered during a military parent's deployment, then upon his or her return, Section 4109(b) requires the court to reinstate the cutody order that was previously in effect, 51 Pa. Cons. Stat. §4109(b). This reinstatement after an extended absence and without court review has troubled many who point out that some military parents may be returning home after deployment with physical or psychological impairments that render them incapable of properly caring for a child. Pennsylvania's adherence to the longstanding best interests of the child principle has also been questioned in Section 4109(c).
Deployment Not ConsideredIf a custody modification is sought after a military parent returns from deployment, Section 4109(c) prevents a court from considering his or her deployment absence in its determination of the best interests of the child, 51 Pa. Cons. Stat. §4109(c). Normally, an extended absence by a parent from his or her child's life would be a relevant factor for a court to consider in making a determination of a child's best interests. Some believe that because a military parent's previous deployment absence is expressly prohibited from simple consideration among numerous factors in the determination, the interests of the military parent are superseding the best interests of the child. It has also been discussed that the ramifications of such an extended absence on a child, particularly a young child, are a separate issue that a court should evaluate.
Furthermore, this statute does not specifically address consideration of anticipated future deployments. Wisconsin, for example, extends its prohibition to future deployments, Wis. Stat. §767.451(5m)(c), whereas Tennessee explicitly provides that courts are not kept from taking into account a military parent's volunteering for frequent or successive duties out of state, Tenn. Code Ann. §36-6-113(e). Pennsylvania's omission of reference to future deployments indicates that they may be considered in the best interests of the child analysis.
Failure to AppearSection 4109(d) states that a military parent's failure to appear in court during his or her deployment cannot alone justify modifying a child custody order, 51 Pa. Cons. Stat. §4109(d). The language of the statute therefore suggests that it may be one of several factors a court may consider, but that may have no practical consequence given the clear intent of the legislature to protect the custody rights of military parents. The 2012 amendments to the Military and Veterans Code permitting both expedited and electronic hearings may have rendered this law less significant now as well.
Expedited HearingsThe recently added Section 4110(a) requires a court to hold an expedited hearing upon the motion of a soon-to-be-deployed military parent and a finding of good cause, 51 Pa. Cons. Stat. §4110(a). Nothing in the language of the statute, however, allows a military parent to request an expedited hearing date during or after deployment. If a hearing date before deployment is not possible or requested, Section 4110(b) provides deployed military parents with another way to participate at a child custody hearing.
Electronic HearingsIf a child custody hearing is set for a date during deployment, the newly enacted Section 4110(b) requires a court to permit a deployed military parent to present evidence and testify electronically upon his motion, reasonable advance notice and a finding of good cause, 51 Pa. Cons. Stat. §4110(b). He or she may do this by telephone, videoconference or the Internet.
Assignment of Custody RightsA deploying military parent now has the ability to temporarily assign his or her child custody rights to his or her family members, 51 Pa. Cons. Stat. §4109(a.1). This new law requires that: (1) the military parent petition the court for a temporary order; (2) the military parent be joined in the petition with the selected family members; (3) the petition include a proposed revised custody schedule for the care of the child by the family members; (4) the proposed schedule not include, and the court not grant, custody rights to family members that exceed those of the military parent that were in effect at the time of the filing of the petition; and (5) the court apply the best interests of the child standard to the assignment determination. If found to be in the child's best interests, the court may issue a temporary custody order with the proposed schedule or another revised schedule as the court sees fit.
This section was originally drafted with the term "biological relatives," but the Senate struck that term, replaced it with "family members," then adopted its broad definition from the Child Protective Services Law: "Spouses, parents and children or other persons related by consanguinity or affinity." In expanding the pool of potential assignees and not requiring them to have had a previous relationship with the child, Pennsylvania's approach with respect to whom a deploying military parent may assign his or her child custody rights is less child-focused than other states such as North Carolina, which expressly limits a child custody assignment to only those family members having a "close and substantial relationship" with the child, N.C. Gen. Stat. §50-13.7A(d). A possible result of this new law is a situation in which nonmilitary parents are sharing custody with people that neither they nor their children know or know well.
Those who are co-parenting with deploying service members must understand that assignment of custody rights is not automatic, but rather that the statute provides a means for it to be accomplished. Because the court must perform a best interest of the child analysis, the opposing party will have an opportunity to challenge the assignment at a hearing. With the new law permitting expedited hearings, however, both military parents and those wishing to challenge an assignment may have little time to prepare effectively.
New Laws in EffectPennsylvania first enacted laws protecting the rights of deployed military parents back in 2008. This year, three new laws went into effect concerning expedited and electronic hearings and assignment of custody rights.
All Pennsylvania family law practitioners should carefully review Sections 4109 and 4110 of the Military and Veterans Code for more details to not only better assist their military parent clients but also their nonmilitary clients involved in custody matters with military parents. •
Caroline L. Vodzak has a broad-based general law practice in Pittsburgh that includes family law. She can be contacted through her website, vodzaklaw.com.