Wednesday, July 19, 2006

Case Law Development: Custody Disputes and Active Military Duty

Two recent cases have addressed the parents in active military service who are faced with custody disputes. 

In a case in which Mother sought to modify a custody award that had granted sole custody of her child to Father's mother while Father was deployed to Iraq, Father requested a stay of the proceedings, citing the Servicemembers Civil Relief Act, 50 U.S.C.A. App. § 501 et seq. (2003).  However, Father did not comply with the documentation requirements of the Act.  Thus, whether to grant a stay was entirely within the discretion of the court.  Since mother had a superior right to custody over paternal grandmother, the Kansas Supreme Court held that there was no abuse of discretion in denying a stay of the action and granting temporary custody to mother. 

In re Marriage of Bradley, 2006 Kan. LEXIS 478 (July 14, 2006)
Opinion on the web (last visited July 19, 2006) bgf

Jeanne Hannah's blog Updates in Michigan Family Law provides another case on the topic: The Michigan Court of Appeals issued an unpublished decision on July 18, 2006 remanding to the trial court and directing that court to comply with a Michigan statute that requires the court to return a child to a parent who has returned from active military duty. In addition, the COA reversed two prior court orders that changed custody from the custodial parent after she attempted to vest the maternal grandparent with guardianship upon her deployment rather than to allow the non-custodial father to care for the child in her absence. In Michigan, a trial court is limited by the recent amendment to MCL 722.27 in its authority to modify custody orders of deployed parents. If a custodial parent is deployed, and a motion for change of custody is filed during the time a parent is in active military duty, the court may not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty. However, the court is authorized to enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.

According to the statute, when the custodial parent returns from active military duty, the court must reinstate the custody order in effect immediately preceding that period of active military duty. Moreover, the Court may not hold the parent’s absence on account of active military duty against the parent in a best interest of the child determination in deciding a motion for change of custody filed by the other parent after the custodial parent returns from active military duty.

Holmes v. Coleman, (Michigan Ct. App. July 18, 2006)
Opinion on the web (last visited July 19, 2006) bgf

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