ALFRA's proposed Alabama Mobilized Parent Protection Act.
22 Feb 10 - Here are the Alabama Family Rights Association (AFLRA) recommendations to the House Judiciary Committee Bill regarding mobilized parents.
Our legal research team studied similar laws from sister states. Our version is consistent with those similar laws. Alabama Mobilized Parent and Child Protection Act SYNOPSIS: This bill addresses (1) custody modifications to mobilized parents in the armed forces; (2) the right of first refusal of the secondary custodial parent to exercising physical custody when a mobilized parent is on active duty; and (3) when any legal action not listed within this Act is filed against a mobilized parent, provisions of the federal Servicemembers Civil Relief Act (SCRA) shall be applicable.
A BILL
TO BE ENTITLED
AN ACT
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Definitions
For the purposes of this article the following words shall have the following meanings:
(1) ARMED FORCES. The National Guard and the Reserve Components of the Armed Forces, the United States Army, the United States Navy, the United States Marine Corps, the United States Coast Guard, and the United States Air Force, and any other branch of the military and naval forces or auxiliaries of the United States or this state.
(2) MOBILIZED PARENT. A parent who:
(a) Is a member of the armed forces; and
(b) Is called to active duty or receives orders for duty that is outside the state or country, which is consistent with provision of the SCRA.
(3) SECONDARY CUSTODIAL PARENT. A parent who:
(a) Has shared legal custody of a child.
(b) Does not have physical custody, but has rights of visitation of a child.
Actions filed against a mobilized parent.
A court shall apply the Servicemember Civil Relief Act to any legal action filed against a mobilized parent while said parent is on active duty in the armed forces.
Transfer of temporary physical custody of children of mobilized parent to the secondary custodial parent.
(1) When a mobilized parent with primary physical custody of the children has been called to active duty, the mobilized parent shall notify the secondary custodial parent by written certified mail within 15 days of notice of said active duty assignment.
(2) The secondary custodial parent shall have the right of first refusal to exercise primary parenting status with his or her children while the mobilized parent is on active duty. The right of first refusal does not apply to a biological parent that does not have shared legal custody of said children.
(3) The secondary custodial parent must provide written notice to the mobilizing parent by certified mail within 15 days from receipt of notice stating intent to accept or refuse exercising primary custody of said children.
(4) When the secondary parent refuses to accept temporary primary custody during the mobilized parent active duty assignment, the mobilized parent shall proceed with selection of a guardian as provided in the military care plan of the armed forces.
(5) If a mobilized parent does not notify the secondary custodial parent consistent with provisions of this Act, the secondary custodial parent shall at any time file a legal petition with the court to exercise temporary primary custody while the mobilized parent is on active duty.
(6) With proper notice the court shall grant temporary primary physical custody to the secondary custodial parent over the objections of the mobilized parent including overruling military care plan when the mobilized parent does not honor provisions of this act.
Temporary modification of decree for child custody or parenting time for children of a mobilized parent.
(1) A court shall not permanently modify a decree for child custody or parenting time solely on the basis that one (1) of the parents is a mobilized parent.
(2) Any modification of a child custody decree based on the active duty of a mobilized parent shall be temporary and shall revert back to the previous child custody decree at the end of the deployment, as appropriate.
Petition for assignment of parenting time rights to legal or biological relatives while a mobilized parent is out of the state on active duty military service.
(a) When a mobilized parent has been called to active duty military service and the active duty service requires the parent to be out of the state for a period of at least ninety (90) days, the mobilized parent may petition the court with jurisdiction of the order granting parenting time for a modification of that order for the temporary assignment of that parent's parenting time rights to a legal or biological relative or relatives, provided said relatives, are fit, willing and capable of exercising said parenting times. The mobilized parent shall be joined in the petition by the relative or relatives to whom the parent is seeking to assign parenting time rights. The petition shall include a proposed parenting time schedule with the relative or relatives that shall not exceed the parenting time granted to the parent at the time of filing the petition.
(b) A court shall hold a hearing regarding sub section (a) within 60 days from date petition is filed, and shall issue an order within 30 days of said hearing, unless the court has valid concerns to the fitness of said relatives.
(c) Any time a valid concern of fitness regarding legal or biological relative or relatives of the mobilized parent is brought to the courts attention, the court shall order a home study or other investigation as required to protect the children. Said investigation shall conclude within 30 days concerns are brought to the courts attention.
(d) Any findings of unfitness under subsection (c) shall be determined by clear and convincing evidence. The court shall list written findings of fact to support such determination.
(e) Any party that makes false accusations of unfitness against a military parent, and/or legal or biological relative of a military parent regarding sub section (a) and proved under subsection (c) shall be fined no less than $5,000, plus reasonable attorney fees payable to the parties required to defend such false accusations.
(f) If the mobilized parent does not petition the court for said temporary modification within ninety days (90 days) of mobilization, the children shall remain first, in the primary care of the non-mobilized parent, provided said parent desires primary care of the children; or second, in the care of the guardian the mobilized parent approved under the military care plan required by the armed services. Said parenting times shall revert back to the previous custody decree at the end of the deployment, as appropriate.
(g) The court shall presume unless the petitioning mobilized parent has been found unfit - by clear and convincing evidence - that said parent has a fundamental parental right to make best interests decisions for said children.
(h) The court shall grant the petitioner's request for assignment of parenting time if the court finds that said parenting time is not inconsistent with this Act, and not inconsistent with the federal Servicemembers Civil Relief Act.
(i) An order granting an assignment of parenting time rights pursuant to this Act shall terminate immediately upon the termination of the petitioner's term of out of state active duty military service.
NOTE: The Armed Services does not, as a matter of routine, investigate fitness of persons that a mobilized parent chooses to leave his/her children. If said child best interest decisions of mobilized parents are satisfactory for the military, same should be satisfactory for the state.
ALFRA - MD 2010-02-22
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