Maryland Family Law Maryland family law opinions and commentary
Elizabeth J. McInturff
Maryland is home to thousands of military families and hosts 11 military bases. For military families or individuals going through custody proceedings, the process can require additional considerations that civilian families do not have to contemplate.
To address custody considerations when a parent is deployed, the Uniform Law Commission passed the Uniform Deployed Parents Custody and Visitation Act (“UDPCVA”) in 2012. Subsequently, many states have enacted this Act or similar legislation.
Maryland, however, has not enacted the UDPCVA. Rather, custody considerations are governed by §9-108 of the Family Law Code and the federally mandated, Service Members Civil Relief Act (“SCRA”).
Maryland’s Family Law Code primarily deals with custody determinations that are made while a parent is already deployed or after that parent returns.
For example, §9-108 provides that orders made during a term of deployment must specify the deployment of the party. And orders based on deployment must require the nondeployed party to facilitate the other parent’s leave schedule and opportunities for telephone and electronic access.
Although the SCRA provides that a service member can request a 90-day delay for court proceedings, a court can still rule in their absence and/or earlier based on a best interest of the child argument.
The act goes much further than either the SCRA or Maryland’s code in protecting service members and maintaining the best interests of the child. It outlines requirements and steps for temporary modification of visitation and custody orders to account for the deploying parent’s temporary absence and the best interests of the child.
For example, under the act, the parent being deployed is required to provide a plan for fulfilling his or her share of custodial responsibility during deployment, as well as other important necessary information such as notice of the pending deployment and address changes during the deployment.
This provision goes hand-in-hand with Maryland’s recently enacted Parenting Plan requirements. This requires both the deploying parent and the other parent to really consider the child’s best interests during the time of deployment and how to facilitate access.
Importantly for the deploying parent, the UDPCVA states that a court cannot use history of deployment or potential future deployment in determining the best interests of the child. This protects the military parent from losing custody based solely on deployment.
Further, the act states that a permanent custody order cannot be entered prior to or during deployment without the consent of the military parent. This allows the military parent to fully participate in the custody proceedings.
Unique to the act is that a court may consider granting temporary caretaking or decision-making authority to a nonparent. To be considered, the nonparent must be either an adult family member of the child or an adult with whom the child has “a close and substantial relationship.”
This allows a close nonparent to shoulder some of the burdens of parental decision making and provide support to the civilian parent in the deployed parent’s absence.
The UDPCVA also provides that the temporary custody agreement may terminate on a specific date if included in the language of the agreement or if both parents sign an agreement to terminate following the deployed parents return.
However, the act also provides for automatic termination 60 days from when the military parent gives notice to the civilian parent of return. This ensures that the custody agreement during deployment truly is temporary.
Maryland would be uncomplicating a complicated process and protecting the best interests of the child and the rights of the deploying parent by adopting some or all provisions of the act.
Elizabeth J. McInturff, Esq., a partner at JDKatz, PC, represents clients throughout Maryland and Washington, D.C., in complex family, civil and commercial disputes. For more information, visit www.jdkatz.com.
