Active duty and deployment obligations make child custody more challenging for divorced military parents. Due to the demands of military life, divorce rates in the uniformed services are higher than in the general population.
Most states have laws to clarify what happens to child custody and visitation arrangements when a parent is deployed. The Uniform Deployed Parents Custody and Visitation Act is the most common such law.
What Is the Uniform Deployed Parents Custody and Visitation Act?
The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) is designed to protect deployed military parents and to help guide courts in family court proceedings involving service member families.
An increased number of issues relating to child custody and visitation among military families—such as delegated visitation rights, electronic evidence and testimony, communications between children and service members during deployment, and expedited hearings—began cropping up in court cases in the 2000s. The Uniform Law Commission (ULC) drafted the UDPCVA in 2012 to allow states to adopt a uniform procedure to help guide courts when faced with military parent custody cases.
The increase in custody and visitation issues was in part due to the increase in overall deployments. Because of the unique considerations of service membership, such as the fact that service members may be deployed overseas for many months at a time, courts have struggled in the absence of rules to guide them in making child custody decisions. Service members may have little control over their deployment status, and often can’t be present to advocate for themselves when custodial issues occur.
In an effort to ensure that parents who serve their country are not penalized for their service, the ULC crafted the UDPCVA in part to provide certain protections for deployed parents while still prioritizing the best interests of the child.
The ULC sought to include provisions for custody, visitation, and decision-making needs that arise when one parent is absent due to military duties.
How Does the UDPCVA Help Resolve Custody Issues?
One key aspect of the UDPCVA is that it defines “military absence” by stating that the mere absence of a military parent from a state won’t be used to deprive that state of custody jurisdiction.
This is important for service members. Unlike civilians, when service members are deployed, they are not leaving the state voluntarily. The UDPCVA states that deployment will not legally change a service member’s residence for the purposes of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).
The UDPCVA also states that, if a child is moved to a different state, this placement is not an official change in the child’s state of residence, but instead is just an interim parenting schedule.
UDPCVA’s Five Articles
The UDPCVA is comprised of five articles designed to help military families and courts navigate child custody and visitation proceedings.
Article 1 explains definitions, such as “deploying parent” and “family member,” as well as provisions.
Courts cannot consider a deployed parent’s past or future deployment as the sole factor when determining the best interests of the child in custody proceedings.
Courts can consider the impact of past or future deployments on children.
A parent who is deploying is required to inform the other parent of their deployment status as soon as possible, and not later than seven days after receiving notice of their status.
Each parent must provide a plan for fulfilling that parent’s share of custodial responsibility during deployment to the other parent, in a record, as soon as possible.
Article 2 describes the procedure for creating out-of-court arrangements for custody while one parent is deployed, and explains the substantive terms and protections provided by the UDPCVA.
Parents can form or modify an agreement during deployment in a record, due to practical challenges that may arise, by obtaining a signed agreement while a service member is deployed.
Article 3 allows for expedited proceedings for parents who can’t agree on ensuring that a custody order can be entered prior to deployment.
A permanent change to custody can’t be ordered without the consent of the deployed parent.
A deploying parent can request the court grant the service member’s portion of custodial responsibility in the form of caretaking authority to an adult nonparent who is either a family member, or with whom the child has a close and substantial relationship.
Article 4 discusses the return from deployment. Reversion to the prior custody arrangement is not automatic, but the Act seeks to make reversion easy for service members. Article 4 outlines the procedure for mutual agreement to terminate a temporary custody arrangement and contains two sets of protocols—one for when parents agree to terminate the arrangement and one for when parents do not agree and a court’s intervention is needed.
Nondeployed parents can contest reversion of custody after a deployed parent returns, if that parent believes reversion is not in the best interest of the child.
Article 5 explains the language of the act, and the effective date.
What Counts as Deployment?
A deployment is defined by the UDPCVA as “the movement or mobilization of a service member to a location for more than 90 days, but less than 18 months, pursuant to an official order that is (i) designated as unaccompanied; (ii) does not authorize dependent travel; or (iii) otherwise does not permit the movement of family members to that location.”
How Is Custodial Responsibility Granted During Deployment?
Article 3 of the UDPCVA outlines what happens when parents can’t reach an agreement out of court on arrangements during deployment. Once a service member receives notice of their deployment, the court may grant custodial responsibility through a temporary order. Either parent can file a custodial responsibility motion during deployment at any time after the military parent receives notice.
If a court has already approved a plan for what happens when a parent gets deployed, that court order will be enforced in any custody proceeding. However, if the court finds that the plan is no longer in the best interests of the child, it is allowed to change the custody order.
Section 306 states that a court may grant caretaking authority to a nonparent. The court may choose to do this if it finds doing so is in the child’s best interests. This designated adult must be a family member or an adult with whom the child has a “close and substantial” relationship, like a grandparent or aunt. This allows service members to grant their portion of custody, and maintain a connection with their child through a designated adult.
Which States Have Enacted UDPCVA?
Currently, sixteen states have enacted the UDPCVA:
Arkansas
Colorado
Florida
Iowa
Kentucky
Minnesota
Nebraska
Nevada
North Carolina
North Dakota
South Carolina
South Dakota
Tennessee
Utah
West Virginia
Wisconsin
Several other states have introduced or enacted similar legislation protecting deployed parents in custody and visitation cases. The majority of states have some statutory provision that addresses custody and visitation issues in service member families.
When addressing custodial issues, state law may, depending on the state, handle a parent’s deployment in very different ways. Some courts will grant custody to the other “natural parent” for the duration of the service member’s deployment, even regardless of the service member’s wishes, while others will permit the service member to designate a custodian.
Service Members Civil Relief Act
The only existing federal law protecting service member parents in custodial cases is the Service Members Civil Relief Act (SCRA), which provides procedural protections for service members.
The SCRA prevents courts from entering a default judgment (a judgment against a party for not showing up to court) against a service member who didn’t enter an appearance in a lawsuit, and provides for counsel for the absent service member. The SCRA also requires judges to grant stays (a delay of proceedings) of custody proceedings when military service prevents a service member from participating or being present, but these stays are only mandatory for the first 90 days following deployment.
Where Can I Find More Help?
If you are a service member looking for help navigating custody and visitation issues, there are resources available to assist you. Call Military OneSource at (800) 342-9647 for help. You can also contact your branch’s Legal Assistance Office. For more information about your state’s laws, click here.