The hazards of military service are well known. Lesser known are the hazards to home life’s rights and responsibilities that service in the military brings. A pair of cases decided on January 29 brought to light the impact of military duties on custody and visitation.

In Hazelett v. Hazelett, the Indiana Court of Appeals reviewed a case in which the parties were married for about 6 years when the mother filed for divorce; two months later, their child was born while the father was serving overseas. Finding that the father had been absent due to military duties in South Korea, he had only been in Indiana for five days after the child’s birth, and he had not had any type of contact with the child, including by electronic means, from birth until his return to Indiana the week before the final hearing in the case, the judge granted custody to the mother, ruled out overnight visitation until the child was three, and required visitation to be supervised.

The father contended that the trial court erred by denying him overnight parenting time based solely on his absence due to his military service. The appellate court considered this to be a challenge to the trial court’s award of legal custody to the mother on the sole basis of his military service. The Indiana statute prohibits a judge from considering a “parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.”

The trial court’s order was sparse on facts; in addition to the above, it merely stated that the mother had been the child’s primary caretaker since birth and the father had had very little contact with the child. The Court concluded that the judge did, in fact, consider the father’s absence due to military service as a factor in awarding mother sole legal custody, which is prohibited by statute.

The Court of Appeals ruled that the trial judge had improperly considered the father’s active-duty status as a factor in awarding mother sole legal custody, and it had failed to enter appropriate findings. It reversed the custody ruling and remanded the case.

[Author’s Notes: The reader might be confused about the “overnight visitation” argument of the father, who was stationed in South Korea at the time of the hearing. While such parenting time was not possible on a week-to-week basis for the father, it would certainly be a consideration when he took leave to return to Indiana; all servicemembers get 30 days of leave per year, accruing at 2.5 days per month. He might also utilize overnight visits upon his return from the overseas posting; his next base assignment was to be Ft. Carson, Colorado.

Also worth note is the mention of contact by electronic means. If Indiana had enacted the Uniform Deployed Parents Custody and Visitation Act, the father could have petitioned for an order requiring or allowing his regular communication with the mother and the child through electronic means. When parents cannot agree on custody and visitation terms, Article 3 of the UDPCVA sets out provisions for agreements and orders which allow an absent military parent to use electronic means in communicating with the child or children.

The UDPCVA also prohibits the court from using a parent’s past deployment or possible future deployment itself as a negative factor in determining the best interests of the child. Section 107 of the Act states:

In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent’s past deployment or possible future deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent’s past or possible future deployment.

In 2013 North Carolina became the second state to adopt the UDPCVA.]

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On the same decision day and just three states away, the Oklahoma Supreme Court was exploring the issues of custody, visitation and deployment. The parties in Kohler v. Chambers were the biological parents of a child and they shared joint and equal custody and visitation time under a 2016 order. When the father received Army orders for basic training, he filed a motion with the court asking that his time with the child be transferred to his wife. Under the Oklahoma Deployed Parents Custody and Visitation Act, passed in 2011, the deploying parent is entitled to request transfer of his or her visitation rights to a step-parent, a designated family member, or another designated individual. There is a rebuttable presumption that the substitute custody/visitation time is in the best interest of the child and that the step-parent or other individual has a close and substantial relationship with the child.

The mother opposed the father’s motion. She didn’t argue that the substitute custodial time wasn’t in the child’s best interest. She did not say that the father’s current wife lacked a close and substantial relationship with the child. Rather, she argued that the father didn’t qualify since he was not being deployed. He was being ordered to basic training for nine weeks in South Carolina, followed by 19 weeks of advanced individual training in Virginia. The trial judge allowed the father’s motion and granted substitute parenting time rights to the step-mother.

The mother appealed. She argued that the statute applies only to parents who have been “order[ed] to another location in support of combat, contingency operation, or natural disaster,” and not those parents who receive orders for basic training.

The Oklahoma Supreme Court noted that the Uniform Law Commission formally adopted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) in July of 2012. It was designed to address unique issues arising during the deployment of military personnel, including maintenance of the parent-child bond during a parent’s temporary absence due to deployment, resuming normal custody and visitation following a servicemember’s return from deployment and preventing a deployed parent from being penalized as a result of serving his or her country. The Oklahoma statute, which was “[v]ery similar to early drafts of the UDPCVA, … was enacted by the Oklahoma Legislature during the 2011 session, and became effective May 26, 2011.

The Court then examined the definition of “deployment.” The Oklahoma statute states that this term means

…the temporary transfer of a servicemember in compliance with official orders to another location in support of combat, contingency operation, or natural disaster requiring the use of orders for a period of more than thirty (30) consecutive days, during which family members are not authorized to accompany the servicemember at government expense.

Finding that the father’s assigned duties did not qualify as deployment, the Court reversed the trial ruling, leaving the child without contact with the father’s side of the family for 28 months.

[Author’s Notes: The background music for this Oklahoma drama might be Simon and Garfunkel’s 1966 hit, “The 59^th Street Bridge Song,” which begins “Slow down, you move too fast.” If the Oklahoma legislature hadn’t jumped the gun by enacting an early version of the Uniform Deployed Parents Custody and Visitation Act, this case wouldn’t have arisen.

I was a member of the Drafting Committee of the Uniform Law Commission which wrote up the UDPCVA. The initial version spoke of “deployment” in strict terms as to support of combat and contingency operations. We debated that. I pointed out that there were many other instances of “military absence” which should also trigger the rights and duties set out in the Act. For example, a servicemember could be assigned without dependents to a remote tour (e.g., Iceland or Turkey), a six-month “float” on board a Navy vessel, or temporary duty (TDY) for training or a special mission. Why limit the protection of the Act to the strict definition of “deployment” involving military operations?

We finally reached an agreement. In Article I, Section 102, deployment is defined to mean “…the movement or mobilization of a service member for more than [90] days but less than [18] months pursuant to uniformed service orders that:

(A) are designated as unaccompanied;

(B) do not authorize dependent travel; or

(C) otherwise do not permit the movement of family members to the location to which the service member is deployed.”

Perhaps a future amendment to Oklahoma’s statute will “loosen up”

the definition to include more servicemembers and their children.]

The cases are:

Hazelett v. Hazelett, 18A-DN-1592, 2019 Ind. App. LEXIS 36*; 2019 WL 347975.

Kohler v. Chambers, Case Number: 116391, 2019 OK 2 *; 2019 Okla. LEXIS 3 **; 2019 WL 350336.

*Mr. Sullivan, a retired Army Reserve JAG colonel who practices family law in Raleigh, NC, is the author of The Military Divorce Handbook (Am. Bar Assn.), about to go into its third edition. He helps attorneys nationwide with cases involving military divorce issues and the division of military retirement benefits.