Tag Archive for: foreign custody order

Military Obligations Impact Some Pennsylvania Parents’ Child Custody

The extended military presence the U.S. has had in Iraq and Afghanistan has tested society in a number of ways. Many people feel the strain of having loved ones overseas for lengthy military tours. Those who serve their country also face a number of struggles. Marriages often crumble when one or both spouses are in the military, and service members face unique issues when it comes to child custody. A panel of lawyers is recommending a uniform set of laws to address custody issues for military parents. Pennsylvania has been a leader in this area, as its laws already give military parents broad protections regarding child custody.

PROBLEMS FOR MILITARY PARENTS

Across the country, state courts have been called on more frequently to address issues of child custody where parents are in the military. However, there is no consistency in the decisions, and often military parents can fall through the cracks when cases cross state lines.

One of the biggest problems that arise in military custody cases is determining who has jurisdiction over the matter. In typical custody battles, when one parent moves it is a voluntary action. However, those in the military get orders to go to different bases in the U.S. or serve tours overseas. If a non-military spouse also leaves the state in which the two used to reside, then that state may be divested of jurisdiction over the custody matter – even if the military parent still considers that state home and had resided there for some time with his or her child.

Other issues with which courts struggle include whether third parties such as step-parents or grandparents get visitation rights when military parents are deployed and whether temporary custody arrangements that were in place during a deployment should automatically become permanent.

Many service members say that state courts are unfamiliar with the protections that the Servicemembers Civil Relief Act provides in family law matters and their rights are ignored because they are absent for many of the proceedings – not by their choice.

UNIFORM CUSTODY LAWS

A group of attorneys appointed by each of the states, called the Uniform Law Commission, is working to address some of the problems that military parents face in divorce. They have drafted and given final approval to the Deployed Parents Custody and Visitation Act, a model set of laws that states can adopt to standardize military custody laws across the county. The group studied laws nationwide and adopted what it determined are the best practices from all the states to create a comprehensive way to address military custody issues. Members of the Commission plan to begin lobbying various state legislatures to adopt the Act next year.

PENNSYLVANIA’S LAWS ON CUSTODY

Pennsylvania has already passed laws regarding military parents and child custody. Since 2008, Pennsylvania law has specifically stated that:

  • Custody cannot change while a parent is deployed
  • Custody rights are reinstated when a parent returns from deployment
  • Deployment is not considered when determining a child’s best interests
  • Failure to appear at a hearing due to deployment cannot be a sole reason for modifying a custody arrangement

In April 2012, the state enacted legislation to allow military parents to assign their custody rights to family members during deployment, as well as the right to expedited or electronic hearings if deployment requires.

Child custody matters are often complex and when parents are in the military the situations can become even more complicated. Military parents who have child custody issues should not try to handle these matters alone, but should seek counsel from an attorney with substantial experience in military child custody matters.

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Recognition of Foreign Orders

U.S. Courts have recognized foreign support/custody orders, divorce decrees, adoption decrees, and money judgments. A court will recognize a foreign Order under the doctrine of comity so long as the party has established domicile in the foreign country. As discussed in Hilkmann v. Hilkmann, “[c]omity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation…Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect.” 2003 PA Super 25 (2005).

The two primary considerations when determining whether to acknowledge a foreign Order are whether the foreign court had jurisdiction and whether fair procedures were used. Jurisdiction is governed by domicile of at least one of the parties. In Commonwealth v. Doughty, the court held “[i]t is an established and familiar principle that judicial power to grant a divorce is founded on domicile. In the absence of domicile by at least one of the parties to the action, the Court has no jurisdiction over the cause and its decree will consequently, not be endowed with extraterritorial effect.” 187 Pa. Super. 499 (1958). Accordingly, “[a]n absolute prerequisite to judicial recognition of an out-of-state divorce is that the plaintiff must have resided in the state or country for a minimum period of residency as determined by local authority and that the residency be accompanied by domiciliary intent, i.e., an intent to remain in the foreign jurisdiction.” Sargent v. Sargent, 225 Pa. Super. 1 (1973).

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