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House approves military child custody bill against expert advice

Rhode Island military families may be interested to learn that Congress recently passed the Service Member Protection Act. The Act is supposed to protect service members from losing child custody on the basis of military deployment. Specifically, it prohibits courts from treating military service as a detrimental factor in custody decisions. The bill's sponsor asserts that people serving in the military should not have to worry about how a deployment could affect custody modification.

The Act, however, has faced a great deal of criticism. Critics range from the American Bar Association and the National Military Family Association to expert family law attorneys. Those who do not support the Act argue that allowing federal judicial review of a court order that determines legal custody will increase the expense of a custody dispute. In addition, the best interests of the child will be subject to review by judges who do not normally practice family law.

Perhaps the biggest criticism of the Act is that it may lead to outcomes that are in the interest of the parent serving in the military as opposed to what is in the best interest of the child or children at the center of the custody dispute. It is widely accepted that the best interest of the child needs to be the paramount consideration in custody disputes.

In 2010, the Department of Defense conducted a study and found no evidence that military service had been relied upon as the exclusive basis for depriving a service member of child custody. As a result, critics feel that the Act is unnecessary.

Nevertheless, it will be interesting to see how the new Act plays out in future family law cases.

Source: The Herald, "Military child custody bill has its detractors," Tom Philpott, June 11, 2012

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