Uniform Deployed Parents Custody & Visitation Act

A Real World Problem

One case I will never forget involved a military mother with primary custody (“physical care” in Colorado) over her child, who was stationed at Fort Carson, Colorado. The child’s father had weekend parenting time. The mother received orders for a one-year unaccompanied tour to Korea, and despite her best efforts, could not change her orders. While the mother was gone, the child lived full-time with his father.

At the end of the year, the mother was unable to return to Fort Carson, and was sent to an army installation in Alabama. Father wanted to keep the child, so refused to let the child move with her. Mother filed a motion seeking to relocate the child with her, and the judge denied the motion, ruling that under Colorado law (C.R.S. 14-10-129), only the primary residential parent had legal standing to relocate a child. And by going to Korea for a year, the mother had lost her status as custodial parent.

While the Uniform Deployed Parents Custody & Visitation Act came several years too late to help that mother, military parents in her situation no longer have to worry about losing custody due to deployments or unaccompanied tours.

Introduction to Deployed Parents Act

In 2012, the National Conference on Commissioners on Uniform State Laws approved the Uniform Deployed Parents Custody & Visitation Act (UDPCVA) - as the name suggests, an act to protect military parents who are deployed. The Act is simply a proposal for legislation, until states adopt it, it is not legally binding.

As of 2018, ten states have enacted the deployed parents act, while several others have enacted similar protections. Colorado was an early adopter, in 2013, and the act is codified at C.R.S. 14-13.7-101, et seq. Links to the UDPCVA in this article are to the Colorado provisions.

What Protections does the UDPCVA Provide?

“In a proceeding for custodial responsibility of a child of a service member, a parent's past deployment or possible future deployment in itself may not serve as the sole basis in determining the best interest of the child. Nothing in this section shall be construed as prohibiting the court from applying section 14-10-124 in determining the best interest of the child.” UDPCVA, Section 107. (Emphasis added).

Note the emphasized language - the court is not required to completely ignore a military parent’s deployments when determining child custody - just that the deployment cannot be the sole basis for custody.

The act provides that the deployment will not change the military parent’s residence for purposes of the UCCJEA. Section 104.

Moreover, the act prevents the child’s home state being changed by an interim parenting schedule which places the child outside of the military parent’s state. C.R.S. 14-13-102(7)(b).

When Does the UDPCVA Apply?

First, the court actually has to have UCCJEA jurisdiction over the child. Section 104.

The Act applies to a deployment, defined as a mobilization or movement for 90 days - 18 months where family members are not authorized. Section 102(8). Note that while this would certainly cover most deployments, the act does not explicitly require that the movement be to a hostile fire zone. Strictly speaking, it would cover any unaccompanied military tour within that duration, so technically includes regular TDY, or a 1-year tour in Korea.

Procedure for Agreement or Hearing

If there has already been a prior custody order, the deploying parent must advise the other parent of the upcoming deployment within 12 days of receiving orders, unless military duties prevent such notice. Section 105. The parents are then to exchange parenting proposal as soon as possible thereafter.

In lieu of a hearing, the parents may reach an agreement as to parenting during the deployment. Section 201. Subsection 3 outlines factors the agreement should address, but failure to include them does not invalidate the agreement. The agreement may be submitted to the Court, but there is no requirement to do so.

If the non-deploying parent has no parental responsibilities over the child, including visitation, then no agreement is necessary. The deploying parent can simply designate a third party to care for the children using a power of attorney. Section 204.

At any time after notice of a deployment, either parent may file a motion for interim parenting responsibilities during the deployment in the existing custody case, if any, or by filing a new custody case. Section 302. The court is then required to grant an expedited hearing. Section 303.

The act contains guidelines for a hearing:

• Existing Order. If there is already an existing order or agreement addressing parental responsibilities during a deployment, at a hearing the court is required to enforce it. Section 305.
• Caretaking Authority. The court may grant caretaking authority to an adult family member or an adult with physical care of the child for at least 182 days. Section 306. Caretaking authority “means the right to live with and care for a child on a day-to-day basis” Section 102(2).
• Limited Contact (visitation) shall be granted to an adult family member or adult with physical care of the child for at least 182 days. Section 307.
• Child Support may also be addressed by the court. Section 310.

In addition to specifying care of the child during the deployment, per section 309 the interim order must also provide for:

1. Communications between the deploying parent & child during the deployment
2. Liberal contact between the deploying parent & child during any mid-tour leave.
3. Reasonable contact between the deploying parent & the child between the end of the deployment and expiration of the interim order.

Parenting After Deployment

The Act makes clear that a grant of parenting authority during a deployment is interim only, and ends upon deployment. Section 308. Unless the parties agree otherwise, an interim agreement (Section 401) or interim order (Section 404) expires 35 days after the deploying parent returns.

Between the time the deploying parent returns and the interim order or agreement expires, the court shall immediately grant that parent reasonable contact consistent with the parent’s post-deployment leave. Section 403.

Federal Law - Servicemembers Civil Relief Act

A provision of the Servicemembers Civil Relief Act (SCRA) provides similar protection, 50 U.S. Code § 3938, but lacks the detail of the Uniform Act, and the federal statute specific provides that if a state statute provides greater protection, then the state statute controls. While the author has had numerous cases where the UDPCVA was implicated, the SCRA provision has not come up.

More Information

Military Parent Custody & Visitation, from the National Conference of State Legislatures, with information on state adoptions of the UDPCVA.

Deployed Parents Custody & Visitation Act, from the Uniform Law Commission, with the full text of the act, fact sheets, analysis and argument.