New DoD Instruction Strengthens Rights of NonCustodial Parents

Army Col. Shawn Shumake, the director of the Pentagon”s Office of Legal Policy, said many servicemembers may believe mistakenly that their family care plans allow them to transfer temporary custody to a child”s steparent or grandparent during a deployment. But when another biological parent is in the picture, state courts have unanimously ruled that a parent”s custodial rights take precedence.

That’s the good news reported by this article (Cannon Connections, 10/22/10).  Apparently, the United States Department of Defense issued DoD Instruction 1342.19 entitle “Family Care Plans” last May.  It requires all military personnel who deploy overseas to put in place a plan for the care of any minor children of whom they have custody.  It seems that, up to now, custodial parents felt free to simply place the child with stepparents or grandparents instead of the non-custodial parent. 

The new instruction requires them to notify the noncustodial parent of the impending deployment.  The noncustodial parent’s rights trump those of all others, absent a showing of unfitness, so, if there’s a conflict about custody, it’s the custodial parent who has to go to court to try to get an order granting custody to someone other than the noncustodial parent.

The instruction, originally published in 1992, initially applied only to single-parent servicemembers. Beginning in 2008, dual-military couples with children were required to file such a plan. The policy now applies to:

• Servicemembers and civilian expeditionary work force members who have legal custody or joint custody of a minor child

• Single parents

• Dual-service couples with dependent family members under the age of 19

• Servicemembers and expeditionary civilians legally responsible for others of any age who are unable to care for themselves in their absence

The new instruction is of no small importance.  According to the article,

More than half of the 2.2 million U.S. men and women serving in the military are married, and 43.7 percent of the active duty force has at least one child. More than 1.7 million American children under the age of 18 have at least one parent in the military.

The article gives a good idea about how far fathers’ rights in custody cases have come.  Some 84% of parents with primary custody are mothers.  So any rule, regulation, law or practice that benefits noncustodial parents, overwhelmingly benefits dads.  Having been an attorney for 30 years and a fathers’ rights advocate for 12, I can tell you that I well remember times that such an instruction by the military would never have even been considered.  That’s partly because the military wouldn’t have recognized the rights of noncustodial dads, but state courts wouldn’t have either.  Now, while it’s far from etched in stone, at least there’s growing recognition that fathers’ custodial rights have their basis in the Constitution.  They are therefore less and less easy to ignore, however much some people might want to.

Thanks to Don for the heads-up.

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