Hawaii Legislature Enacts Legislation Protecting Military Parents in Child Custody Disputes
By Captain Samuel F. Wright, JAGC, USN (Ret.)
5.0—Military Service and Family Obligations
In 2010, the Hawaii Legislature enacted a new law to protect the interests of military personnel (including National Guard and Reserve personnel) in child custody matters. The new law provides for expedited hearings in cases where one or both parents are deploying, and it also provides that deployment should not be a negative factor in determining permanent child custody arrangements. This is a favorable development, and I hope that other states will follow suit.
As Colonel John Odom and I explained in Law Review 0951, marriage, divorce, child custody, marital property division, and other domestic relations matters have always been governed by state law and state courts, not federal law and federal courts, in our country. We believe that this should continue to be the case, even in those child custody cases where one of the parents is a member of the National Guard or Reserve and has been called to the colors. Putting these cases in federal court would not serve the interests of Reserve Component members or their children. If you think that child custody litigation is expensive in state court, just wait until petitions for removal to federal court and remand petitions (trying to get cases back to state court) begin to be filed.
When the parent with primary custody is deployed, the other parent will normally take over primary custody, until the military parent returns from deployment. If there is a material change in circumstances (and deployment of the parent is certainly a material change), it is the province of the court, not the custodial deploying parent, to decide or approve a change in the custody arrangements. The custodial parent does not have the legal power or right to turn over custody to his or her parents, for example, in the face of objections from the other parent.
When the deploying parent returns from war, the pre-deployment custodial arrangements should be restored, in all but the most unusual circumstances. The fact of deployment must not be used as a reason for changing permanent custodial arrangements. Otherwise, the prospect of losing one’s child could be a most powerful disincentive to recruiting and retention in the Reserve Components.
There are many issues that are addressed by state legislatures and local governments that significantly affect ROA’s national defense mission, but we of the national staff have our hands full here in Washington. I call upon ROA departments and chapters to monitor and address these issues in the state capitals, county courthouses, and city halls around the country. I reiterate an important point that I first made more than a decade ago, in Law Review 16 (Aug. 2000). Department and chapter Presidents, Judge Advocates, and other officers: Contact me to discuss what needs to be done in your state. Call me at 800-809-9448, ext. 730, or e-mail me at SWright@roa.org.