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MILITARY DEPLOYMENT AND CHILD CUSTODY Thursday,
November 8, 2007 Interim
Special Judiciary Committee 2007-2008
Kansas Legislative Session TESTIMONY
OF RONALD W. NELSON Issues Surrounding Child Custody
Disputes with Military Servicemembers Members
of the Committee: Good afternoon. My name is Ronald W. Nelson. I practice
domestic relations law with my offices in Shawnee Mission, Kansas. My
practice emphasizes handling complex domestic relations issues in divorce,
parentage and other domestic relations disputes including child custody and
child support. My clientele is fairly evenly split
between representation of men and women. Over the years, a significant number
of my clients are associated with the United States Military; either as the servicemember or as the spouse of a
servicemember. In the context of those cases, I've often had to wrestle with
the difficult issues that arise when the family dynamics and existing
practices of sharing a child’s custody are disrupted
by military service including a servicemember’s overseas assignment or orders
to a new duty headquarters. Recently,
the increasing number of both mothers and fathers being
deployed overseas has caused significant problems among military
families. The problems that have arisen are not unique to military families;
however, because of the large number of families affected by these
deployments, family disputes that had been limited to a small number of
people now affect a much larger number. As a result, proposed legislation has been introduced in many States as well as in the
United States Congress seeking to correct perceived wrongs with the way in
which child custody matters are being addressed. Among the legislation
proposed is an Act passed by the North Carolina Legislature which contains
four sections and provides certain “protections” to military servicemembers
during and after deployment:
Many of
the provisions proposed to deal with this issue are good and appropriate;
however, many of them do not necessarily take into consideration what would
truly be in the subject child’s best interests. Unfortunately, some of the
proposed “remedies” use a sledgehammer to deal with a fly and others fail to
consider that a general rule imposing the same result on all cases has as
much chance of harming the child as benefiting the servicemember parent.
These cases are tricky; these cases are delicate; these cases are complex.
There is no “one-size-fits-all” solution and any attempt to impose such a
solution is bound to cause as many or more problems in execution as does the
existing legal landscape. One
remedy often suggested by those seeking to correct the problem is to allow a
custodial or non-custodial parent to assign their rights to another –
sometimes including relatives of the first, second or third degree and
sometimes including new spouses and step-children.
What happens, however, when this “assignment” is made
without consultation with the other parent? What if the person to whom rights
are assigned is unknown or unacceptable to the
non-servicemember parent? What if the person to whom the rights are assigned has an adversarial relationship with the
non-servicemember parent? What if a servicemember seeks to
assign primary residency status to another family member in derogation of the
rights of the non-servicemember parent? Another
common provision is that any “temporary custody change” terminates within a
certain period after the servicemember parent returns home. However, how does
an automatic termination of a temporary custodial change consider the best
interests of the child? What if the child has become
settled in a new environment? What if the child is
in the middle of the school year in another school district or another city
or state? What if the original custody order did not truly consider
the child’s best interests, but was made as an
accommodation of circumstances that existed at the time the custody
arrangement was originally made that have completely changed in the interim?
What if the child and the non-servicemember parent have formed a different
bond than they had before the servicemembers deployment
that did not exist before the child changed residence from the
servicemembers home? What if upon returning from deployment the servicemember
chooses to locate to a different place than the servicemember lived before
deployment? Still
another common provision is a requirement that the courts hear motions by a servicemember
within a certain number of days from their request for a hearing. However,
how will that direction create more time for the courts? How will the courts
deal with such emergency motions when they already have difficulty
fitting motions to modify temporary orders into the statutory
twenty-one days from the filing of a motion? Why should servicemembers have
preference on the courts dockets when cases identical in the issues raised in cases involving non-servicemembers? Shouldn’t we
try to give everyone the same expedited rights in court to challenge unfair
and improper assertions affecting a child’s best interests? Shouldn’t any
time mandates apply to all cases asserting that one parent is seeking to use
the child as a pawn? Unfortunately,
I have no solutions to suggest to the committee. This problem is significant
and complex. I raise only concerns. This committee must be aware of the
effect that any change in current law may have on children in child-custody
disputes. Children are already too often used as
pawns by the adults who love them for their own selfish, manipulative, and
hurtful reasons. This legislature should not play into the hands of those who
would misuse a law meant to protect the rights of children. Any changes
should be made with a consideration of the effect of that change
on the whole family and the ways in which it will affect the child
upon whom it primarily acts.
___________________________________ Ronald W. Nelson Ronald W.
Nelson, PA attorneys Suite 117; 11900 West 87th
Street Parkway Lenexa, Kansas 66215-4715 Telephone: (913) 469-5300 Email: ron@ronaldnelsonlaw.com |
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