If you’re a military parent facing deployment or a non-military parent facing the prospect of your child being placed in someone else’s custody when the other parent is deployed, a new Nebraska law could seriously impact you.
Beginning January 1, 2016, Nebraska became one of 10 states to adopt the Uniform Deployed Parents Custody and Visitation Act (UDPCVA). This new set of laws affects many Nebraska child custody and visitation cases involving a military parent who is deployed and may stir up controversy with non-deployed parents who want custody of their child.
The UDPCVA has been in the works by a national group called the Uniform Law Commission for quite some time.
The commission is promoting it as a way to provide for the best interests of children of deployed military parents, without penalizing the military mom or dad for their service and still giving adequate consideration to the rights of the non-deploying parent. However, not everyone may agree with the last claim.
The law violates the non-deploying parents’ Constitutional rights
The United States Constitution protects our rights to parent our legal and biological children over all others through what is known as the parental preference doctrine. Based on this doctrine, and assuming it is legally relevant in a deployment case, a non-deploying parent would expect to have full custody of their child when the other parent deploys since the other parent is unable to exercise their custodial rights.
Even if there is a non-parent with a close relationship to the child — for instance a stepparent with whom the child has been living or a close member of the deploying parent’s family — the non-deploying parent would have the right to full custody during the other parent’s deployment since they would have preference under the law.
Under the UDPCVA, the result may be different. If there isn’t already a decree that covers the child’s temporary custody during deployment and a child’s parents can’t agree on custody, they can ask a court to resolve the issue. A judge can temporarily assign a portion of the deployed parent’s custodial rights to a non-parent if the judge finds that it would be in the child’s best interests. The temporary assignment is effective only until the deployment is over.
On its face, the UDPCVA seemingly goes against the parental preference doctrine, which could be seen as a violation of the non-deploying parent’s Constitutional rights.
Or does it?
The Uniform Law Commission says that assigning custody rights of a deploying parent to a non-parent is, in fact, allowed by the Constitution. The commission believes the parental preference doctrine doesn’t apply to military deployment cases because those cases involve two parents who can’t agree on custody during deployment.
Also, the commission says that military deployment cases are different because they don’t involve a court independently granting custody to a non-parent, but rather the temporary assignment of a portion of the deploying parent’s custodial responsibility to a non-parent by request of the deploying parent.
The commission argues that assignment by the deploying parent does not affect the rights of the non-deploying parent and is an exercise of the deployed parent’s custodial rights to determine how his or her child is cared for. The commission compares it to a parent leaving the child with another responsible adult when they go away on vacation.
What the courts say
Courts of appeal in several states, including Iowa, have already upheld cases assigning parental rights of a deploying parent to non-parents.
However, there is also an older Iowa Supreme Court case in which that court upheld the non-deploying parent’s right to custody over a non-parent.Wisconsin’s appellate court has also rejected the kind of assignment of parental rights that the UDPCVA allows.
How Nebraska’s courts will deal with the issue remains to be seen, and is sure to be tested.
Don’t Go It Alone
If you’re a deploying parent or if the other parent of your child is deploying,Hightower Reff has a team of experienced divorce attorneys who know child custody and the special circumstances of military custody cases.
Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us. Don’t go it alone.
This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.