SC Lawyer, March 2012, #2. The Military Parent Equal Protection Act.

• Author: By Col. Barry Bernstein and Col. David Guyton

South Carolina BAR Journal

2012.

SC Lawyer, March 2012, #2.

The Military Parent Equal Protection Act

South Carolina LawyerMarch 2012The Military Parent Equal Protection ActBy Col. Barry Bernstein and Col. David GuytonThe federal government has traditionally provided legal protections for military personnel during periods of service, except in family court. Legal protections for servicemembers have been available for more than a hundred years. While well established for general litigation, the emergency interests and established procedures of family court frequently fall outside these protections. Temporary orders, tactical advantages from deployment and interim issues can create overwhelming odds against the military parent. The inequities facing servicemembers in South Carolina family courts are now addressed by the Military Parent Equal Protection Act.

Prior limitations

Historically, the federal government enacted military protections only for the duration of major conflicts. In 1917, the first comprehensive protections were drafted by Major John Henry Wigmore, better known for his treatise on Evidence. It was revived in 1940, made permanent in 1949, and with minor periodic changes remained until the enactment of the Servicemember Civil Relief Act (SCRA) in 2003. The SCRA greatly improved protections and addressed modern issues, but the area of family law remained unchartered territory.

Certainly family law has proliferated since World War I, when divorce was not even allowed in South Carolina. Modern concerns of parenting out of wedlock, women in uniform, fathers with custody and other family law issues were little known in prior conflicts. The nation has continuously been at war now for more than a decade, resulting in more clearly defined issues for military parents. However, the federal protections for servicemembers are not a resolution of issues involving child custody, support, visitation or other family court topics. Current military responses rely heavily on the National Guard and Reserves, bringing the impact beyond military bases and into communities throughout the country. The absence of federal protection in family court reflects the historical deference to each state for domestic litigation. Although national publicity of the problems and court cases began to arise, there have been few changes to federal law.

While change of custody is the most obvious concern, other issues of family court are found with military deployments. National Guard and Reserve members may have income fluctuation from civilian pay, necessitating adjustment of child support in hearings prior to deployment and again upon the servicemember's return. Visitation becomes an issue when the military parent is home for interim leave, only to be limited to standard visitation, giving the visiting parent as little as one weekend of enforceable visitation during a tumultuous year. When issues arise, the congested family court docket may preclude court access until after the return from deployment, making relief attempts moot. The expense associated with enforcing rights may make these issues financially prohibitive for many servicemembers. The absence of military parent protections needed to be addressed.

The Military Parent Equal Protection Act

South Carolina's Military Parent Equal Protection Act ("MPEPA" or the "Act") became law on June 2, 2009. S.C. Code Ann. 63-5-900 (1976). The name of the Act reflects the intent of the legislature to allow military parents equal footing with non-military parents in family court. It is divided into two sections, with the first section dealing directly with issues of military parents. The second section provides alternative means for servicemembers to participate in court while deployed.

General provisions. Each branch of the military is considered to be in the "military service." The term "deployment" is equally broad and not limited to an overseas or combat deployment. Both active military and reserve duty fall under the scope of the MPEPA. The Act focuses on the issue of military related duties interfering with the parent-child relationship. Therefore, the Act is statutorily broad to protect any military parent's forced separation from a child.

The Act contains provisions to encourage both parents to reasonably accommodate the military deployment, with enforcement mechanisms to discourage bad faith conduct. The parties may file a notice of activation and petition to modify a child support order. Specifically within the MPEPA is a provision requiring cooperation for visitation during the brief periods of leave. The Act provides for the parties to temporarily amend a permanent order for the period of the deployment with minimal legal expense, with all discussions being deemed inadmissible settlement negotiations during subsequent litigation. Additionally, the MPEPA provides for an expedited hearing and attorney's fee sanctions where the parties cannot resolve problems. It is easy to determine the broad legislative intent to force parents to cooperate in order to minimize the impact of the military service, to settle matters outside litigation and to prevent using military service as a litigation tactic.

The MPEPA clearly allows for temporary orders to address the deployment but precludes the deployment itself from being deemed a change of circumstances for a permanent modification of custody or visitation. Any final modification of a permanent order may not occur until 90 days after the servicemember is released from the deployment. The Act provides for matters outside of the military deployment to be considered on their own merit, but clearly the military duty cannot be the underlying basis to modify a prior order. Temporary orders under the MPEPA terminate upon the release from military service, precluding the need for additional hearings. Should the parents be unable to resolve outstanding issues, this section provides for an expedited temporary hearing. Therefore, the MPEPA has emergency provisions to obtain expedited relief while preserving prior permanent orders.

Custody. Probably the most significant protection of the MPEPA is in the area of custody. Although the military parent may have permanent custody prior to deployment, a temporary custody change may be devastating when the child is in possession of the other parent for an extended time while the military parent is deployed. The best interests of the child prevail, and physical custody is an incredible tactical advantage if the child has adapted to the change when the temporary custodial parent initiates an action for a change of custody. Courts are normally hesitant to move a safe and thriving child from status quo when a custody dispute is pending litigation. The practical result is that a temporary change could easily become a permanent change of circumstances. Therefore, absent statutory protection, the placement of a child in the temporary custody of the non-military parent becomes a major advantage once the military parent returns. The MPEPA has provisions to prevent this temporary advantage from being a permanent change.

The provisions of Section 63-5-920 combine to preclude the non-military parent from gaining an upper hand in custody litigation from the deployment circumstances. First, the military deployment must not be the sole factor in making a permanent change of custody. The military parent can argue that all factors of the temporary custody are tied to the military deployment, creating an exclusionary evidence issue for periods other than before and after the deployment. This precludes the interim argument of stability of the child during the temporary order period from being the primary foundation for the change of circumstances. The language is not limited to actual custody, but includes modification to other terms in place for the prior permanent order.

Two additional provisions of Section 63-5-920 combine to further interrupt the potential tactical advantage the non-custodial parent may have received from having temporary possession of the child: (1) "temporary modification automatically terminates when the military parent is released from service and, upon release, the original terms of the custody ... are automatically reinstated" and (2) "a court shall not enter a final order modifying the terms of custody or visitation contained in an existing order until ninety days after the military parent is released from military service." S.C. Code Ann. 63-5-920(B) (1976); S.C. Code Ann. 63-5-920(A) (1976). The combined effect of these provisions places the child back in the military parent's prior custody for three months or more prior to amending the permanent custody agreement. While the best interests of the child prevail and any dangerous situation can be addressed by the court, there is likely a very high burden of proof to prevent an automatic transfer of custody to the non-military parent. The advantage of the non-military parent of having physical custody for the temporary period is broken, and if the child adjusts well to the return to the military parent for those three months, the tactical advantage of temporary custody is lost.

Visitation. Within Section 63-1-920 is a provision regarding visitation that is unique to South Carolina. Subsection (C) provides that the custodial parent must accommodate the leave period of the deployed parent for visitation. Typically, the period at home from a combat zone is only two weeks for a year-long deployment. Without this provision, an uncooperative non-military parent could rely on the standard visitation schedule in the existing order and limit the actual time the military parent has during leave. While this practice may seem to be counterproductive parenting, family court attorneys will attest that illogical parental behavior is not unusual in family court. The potential for unreasonable action remains, but custodial parents who do not cooperate can find themselves facing an expedited hearing under subsection (D) provisions. In addition to the threat of an attorney fee award under Section 63-1-950, the family court retains jurisdiction for visitation and custody issues with specific authority to "provide other appropriate relief" under the expedited hearings clause. Reasonable issues may arise when the child is in school during the period of leave or if significant travel plans for the child were previously made by the non-military parent. However, the reasonableness of the situation rests with the family court, and the parent exercising reasonable offers and timely communication is likely to prevail.

The Act has further provisions to encourage parents to accommodate the deployment without litigation. Much of Section 63-1-940 "encourages" the parties to negotiate, establishing a good faith duty upon the parties to cooperate. This section places a burden upon both parties to disclose pertinent facts to facilitate communication during the military deployment. The section also codifies that these discussions are settlement negotiations, and any of the good faith discussions are inadmissible as evidence at later hearings. An uncooperative non-military parent can face an incredible burden of proof when facing the wrath of a family court judge in determining whether a servicemember was kept from visiting a child.

The good faith requirements of the MPEPA may provide for alternatives to physical visitation during the deployment. Unlike prior conflicts, reliable communication to a combat zone is possible. South Carolina custody and visitation statutes generally do not address the advances of technology. Although e-mail is common today, the law has very little mention of it. Custodial parental control of computer access can equate to cutting off communication with the deployed parent. Direct phone contact was a rarity only a generation ago and is now commonly available through several means. "Skype" provides a readily available live video interaction. While electronic media cannot provide the same interaction as in-person visitation, it is a valuable resource for the parent and child to continue communication. Such alternate visitations can ease the anxiety and stress of both child and parent during the deployment, as well as promote the reintegration process upon the return. Success in these visitation options requires cooperation of the custodial parent, and the statutory accommodation requirement may ensure such cooperation. Several states have provisions for electronic communication in their statutes, and it may be a key consideration if the MPEPA is updated.

Child support. One of the problem areas of mobilization is the potential change of income. The MPEPA provides very clear provisions for dealing with income fluctuation due to mobilization. An increase of income from military service could establish a higher "earning capacity" for the military parent above what is made in civilian life. The temporary deployed income could include combat pay, which would set an impossible standard for the Guardsman or Reservist upon his/her return stateside. The Act's clear language establishes that the military service income cannot be used to establish a new permanent earning capacity. The change in child support can be increased or decreased based upon the period of deployment only. Therefore, a reduction of pay can provide the military parent relief from any reduction in his or her civilian salary earned prior to deployment.

The Act is proactive in establishing the potential period of the change of child support. The period is initiated with the effective date of the mobilization or deployment. This precludes either party from delaying litigation or disclosure because the court fixes the date of military mobilization to begin the change, as well as cut off support as of the termination of military duty. Because military pay is public and readily available by multiple online sources, the non-military parent needs only to know the rank of the military parent and years of service to generally determine pay of the military parent. Further, military orders specify the dates of military service. As a practical matter, attorneys and judges should require military parents to provide a Leave and Earnings Statement (LES) with their financial declarations. Servicemembers have immediate access to their pay information online with "Mypay," making W-2 and LES statements readily available.

The MPEPA also provides that the court can be notified by a simple notice of activation, which is a significant issue if adjusting child support. Federal law may preclude retroactive reduction in child support, but the notice of activation provision allows for adjustment back to the time when the notice is first filed. 42 U.S.C. 666(a)(9)(c) (2007). Failure to file a notice of activation may impede retroactive adjustment for a decrease in support obligation.

Attorney fees and costs. Expense is always a concern in any litigation. Several MPEPA provisions minimize or eliminate costs for compliant parties. Family court has a well-established ability to assess attorney fees and costs, but the MPEPA contains specific considerations for the award of attorney fees and costs for compliance with the Act. The language is broad with an implied duty of cooperation. In addition to inclusive language such as the "failure of either party to reasonably accommodate the other party," "unreasonable delay" and "timely" disclosure, Section 63-1-950 provides for "other factors as the court may consider appropriate."

Generally, a non-military parent using the deployment to ostracize the military parent from a child may draw the wrath of the court. The requirement to "accommodate" the military parent places a high standard of care upon the non-military parent. The plea that a child is being deprived of visiting a parent temporarily home from war during an expedited hearing should certainly warrant the attention of the court. The practitioner can argue that our U.S. Supreme Court long ago held that protective statutes should be "liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation." Boone v. Lightner, 319 U.S. 561, 575 (1943); see LeMaistre v. Leffers, 333 U.S. 1, 6 (1948) (holding that statutes "must be read with an eye friendly to those who have dropped their affairs to answer their country's call"). Because the MPEPA provides attorney fees for failure to accommodate deployed parents, and because of the exigent circumstances, cases brought under the MPEPA should normally be settled quickly or receive an expedited order. Clear findings supporting an award of attorney fees should make subsequent negotiations or hearings easier to resolve.

Potential amendments. The Uniform Law Commission has established a drafting committee for a proposed uniform act to present to the states. The draft Deployed Parents Visitation and Custody Act is undergoing final revisions, with presentation set for the summer of 2012. Therefore, more guidance should be provided to improve upon military parent protective statutes. However, the MPEPA in South Carolina already addresses most issues in the draft.

When the MPEPA was enacted in 2008 in South Carolina, only a handful of states had meaningful military parent protections, and nationally it was one of the strongest statutes. Since 2005, 41 states have enacted protections, with many of these passed after South Carolina's enactment. A review of these provides some areas the South Carolina MPEPA can improve upon. (1)Delegation of visitation. Visitation delegation is found in 24 of the 43 states with protective statutes, but not in South Carolina. The concept is that the visitation time awarded to a deployed parent can be delegated to a family member to exercise that designated time. This was first established in case law in some jurisdictions and has since become a staple in the most recently enacted provisions nationwide. At least one family court judge in this state already allows delegated family member visitation when requested if factually supported and in the best interests of the child. Another common provision in visitation found in more recent enactments is ensuring cooperation in electronic visitation, noted earlier. (2)Jurisdiction. The most recent issue to arise is protection of jurisdiction. Six states have specific language to provide that the state retains jurisdiction through the end of the deployment and the return to the prior order. This is to ensure no conflict with other states within uniform statutes as to jurisdiction, whereby a temporary change of custody for as little as six months could move jurisdiction to the new state. Because states still vary greatly in their acts, maintaining jurisdiction is a valid concern. As a practical matter, attorneys should analyze the residency history of the parties and the child under the current jurisdictional statutes and the MPEPA to determine whether to file in South Carolina. The strength of our act will often tip the decision toward filing in South Carolina for military parents. Also appearing in statutes in other states is a requirement to notify the military parent of a change of address within 30 days, which in addition to ensuring proper contact information, also provides notice of potential jurisdiction issues.

Summary

The Military Parent Equal Protection Act does not cure all problems of military parent litigation. However, it does address family court issues not protected by other statutes protecting servicemembers. Military parents should never be forced to choose between serving their country or losing custody of a child. They should be afforded the ability to focus on their military deployment without the distraction of litigating issues in family court. Persistent conflict and mobilizations are not likely over, and the MPEPA provides the potential to lessen the burdens on military families.

Both authors serve as judge advocates in the South Carolina National Guard, with prior family court practices. Col. Bernstein is legal counsel for the state military department, having served in Iraq in 2006-07, with prior overseas service in the Republic of South Korea. Col. David Guyton is a family court judge who mobilized immediately after the Global War on Terror began in 2001, including time in Israel and the Republic of South Korea, and previously served in Desert Storm in the U.S. Marine Corps.