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The Uniform Law Commission, a public interest legal organization, is working to develop a uniform approach to child custody rules across the United States when parents in the U.S. military divorce.

Since the first Gulf War in 1990-1991 through today’s multiple commitments overseas, the number and length of U.S. military deployments have been increasing—which has brought a steady increase in the number of divorce cases in which one or both spouses serve in the Armed Forces. Because state laws govern marriage and divorce, the states have responded with a variety of laws designed to strengthen service member’s rights during and after divorce. However, those laws differ sharply from state to state.

Enter the Uniform Law Commission, an organization that has worked for 119 years to improve state public policy by drafting uniform state laws on various subjects. It is a nonprofit, nonpartisan association of attorneys appointed to state commissions on uniform laws. It met recently in Nashville to give final approval to its latest model legislation, called the Deployed Parents Custody and Visitation Act. Ideally, state governments across the United States will adopt this law, setting up a system of standardized custody rights for parents who are deployed by the Armed Forces.

The draft legislation developed by the Uniform Law Commission has no legal force. State legislatures give the rules legal power by enacting them as laws.

The Federalism Issue

Because state laws are inconsistent on handling child custody issues when one parent is deployed, service members with similar cases may find great differences in how their respective cases are handled by state courts. That strikes many as unjust.

Congress has tried to enact legal protections at the federal level, but the process hasn’t borne fruit. U.S. Rep. Michael Turner of Ohio has sponsored federal legislation that passed in the House multiple times but failed to progress in the Senate.

Among the people who oppose a federal law on child custody are members of the Uniform Law Commission itself. They argue that family law always has been a duty and prerogative of state government, rather than federal lawmaking. Indeed, having the federal government intrude into this area is potentially a violation of the Tenth Amendment to the Constitution. Such a move could undermine the legal foundations of our system of government, where sovereignty is constitutionally divided between the limited authority of the federal government and the broader powers of the states.

Progressing From Here

While Rep. Turner asserts his law would be more effective than state-by-state passage of the ULC model legislation, he agrees there is a need for a change. He told reporters that today’s family law courts are biased against parents who are absent, even if it’s because of a military deployment.

Eric Fish, the legal counsel for the Uniform Law Commission, says that is one of the reasons the commission is pressing forward to get its model law enacted by the states. He told reporters, “This is an approach to maintain states’ rights and protect service members across the country, without creating an invasive federal system that is just going to confuse child custody.” Fish said that the Uniform Law Commission will begin early next year to lobby state legislatures for passage.

At Speaks Law Firm, our Wilmington military divorce attorneys welcome the prospect of predictability and consistency in child custody cases. The current political climate does not seem to favor passage of a federal law—as Rep. Turner has discovered over the last seven years—so state-by-state adoption of the ULC’s model legislation looks to be our best hope in the near future. We wish success on the effort.