Child Custody and Military Deployment

By Attorney Gregg Herman
June 5, 2012

The U.S. House passed a bill recently by a vote of 390 to 2 that would prohibit family law courts from using military deployments as a factor in determining child custody rights. According to the Washington Post,

“To qualify for the legal protection, individuals would have to be subject to military orders that prohibit family members from accompanying them on assignments ranging from 60 days to 18 months in length.”

While anything that helps service members sounds like a good idea – and is certainly good politics – does this help or hurt children?

From the ABA White Paper which opposing this legislation:

A Solution in Search of a Problem

There is no reported case in which a service member has being denied custody initially due to deployment or has lost his or her custody rights upon return from deployment for that reason. The bill is a solution in search of a problem. For the past three years, whenever Rep. Mike Turner gets ready to introduce his favorite bill, critics have asked, “Where’s the beef?” Where are the problems which would purportedly be solved by such legislation? In the spring of 2010 the Defense Department, after an exhaustive survey of reported cases, issued a report to Congress finding that there are NO cases where a SM lost custody solely due to deployment.

Wisconsin Statutes §767.41(5)16.(c) provides as follows:

(c) If a parent is a service member, as defined in sub. (2) (e) 1., the court may not consider as a factor in determining the legal custody of a child whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member’s home.

And Wis. Stats. § 767.451(5m)(c) provides:

(3m) Reinstatement of former physical placement allocation and schedule. If a party is a service member, as defined in § 767.41 (2) (e) 1., and the court modifies an order of physical placement on the basis that the service member has been or will be called to active duty in the U.S. armed forces, notwithstanding sub. (1) the court shall require in the order that the allocation of periods of physical placement and, if applicable, the physical placement schedule that were in effect before the modification are reinstated immediately upon the service member’s discharge or release from active duty.

There are (to my knowledge) no reported in cases in Wisconsin testing this provision.  The only case which deals with this issue is  Lubinski v. Lubinski, 2008 WI App 151, 314 Wis. 2d 395, 761 N.W.2d 676 which cites Sec. 767.451(5m)(c) in a footnote, finding that it is “not instructive on the issues in this case” (fn. 8) as the case deals with placement during deployment, not modification after deployment.

The issue is not an easy one.  On the one hand, we certainly want to encourage young men and women to join the service with the knowledge that deployment will not harm their custody or placement rights.  On the other hand, the best interests of the children is supposed to be paramount in our legal system.

It is not difficult to imagine a circumstance where those two interests might collide:  A very young child being away from a parent for a  year or more might very well bond with the other parent such that a returning to a prior schedule may no longer be in that child’s best interests.

My preference is that such issues should be dealt with by our courts on an individual basis, rather than by a legislature, either federal or state.  For one thing, courts are less likely to be influenced by political forces.  Second, each circumstance should be considered on its individual merits.  Passing statutes for political posturing can lead to a “one size fits all” result, which may not serve the best interests of an individual child.  While service members should have their rights protected, so should children who, after all, did not volunteer either for his or her particular parent or for the choices made by that parent.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.