50 U.S.C. § 3938: Child custody protection

Summary

If a court makes a temporary child custody order only because a parent who is a servicemember is deploying, that temporary order must end no later than the time the deployment justifies. A court may not use a servicemember’s absence for deployment, or the chance they might deploy, as the only reason to change permanent custody. This does not create a new federal right to sue, give federal courts new power over these cases, or let cases be moved to federal court. If state law gives more protection to the deploying parent, the court must follow the state’s higher standard. Deployment: moving a servicemember for more than 60 days and not more than 540 days under orders that are unaccompanied, do not allow dependent travel, or do not permit family to move to that location.

Title 50, §3938

War and National Defense, Source: USLM XML via OLRC

(a)Duration of temporary custody order based on certain deployments

If a court renders a temporary order for custodial responsibility for a child based solely on a deployment or anticipated deployment of a parent who is a servicemember, the court shall require that the temporary order shall expire not later than the period justified by the deployment of the servicemember.

(b)Limitation on consideration of member’s deployment in determination of child’s best interest

If a motion or a petition is filed seeking a permanent order to modify the custody of the child of a servicemember, no court may consider the absence of the servicemember by reason of deployment, or the possibility of deployment, as the sole factor in determining the best interest of the child.

(c)No Federal jurisdiction or right of action or removal

Nothing in this section shall create a Federal right of action or otherwise give rise to Federal jurisdiction or create a right of removal.

(d)Preemption

In any case where State law applicable to a child custody proceeding involving a temporary order as contemplated in this section provides a higher standard of protection to the rights of the parent who is a deploying servicemember than the rights provided under this section with respect to such temporary order, the appropriate court shall apply the higher State standard.

(e)Deployment defined

In this section, the term “deployment” means the movement or mobilization of a servicemember to a location for a period of longer than 60 days and not longer than 540 days pursuant to temporary or permanent official orders—

(1)that are designated as unaccompanied;

(2)for which dependent travel is not authorized; or

(3)that otherwise do not permit the movement of family members to that location.

Editorial Notes

Codification Section was formerly classified to section 528 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

§3938 Child Custody Protection

Summary

Title 50, §3938

Notes & Related Subsidiaries

Editorial Notes

Citations & Metadata