Monday, February 22, 2010

ALFRA's Recommendations to the Mobilized Parent Protection Act

Find below the Alabama Family Rights Association (AFLRA) recommendations to the House Judiciary Committee Bill (HB 408-VET Sub)

The ALFRA bill is called the Alabama Mobilized Parent Protection Act.

The ALFRA legal research team studied similar laws from sister states. Our version is consistent with those similar laws.


ALFRA Proposed Act - 2010-02-19

Alabama Mobilized Parent Protection Act

SYNOPSIS: This bill addresses (1) custody modifications to mobilized parents in the armed forces; and (2) when any legal action not listed within this Act is filed against a mobilized parent, provisions of the federal Service members Civil Relief Act (SCRA) shall be applicable.




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.

Actions filed against a mobilized parent.

A court shall apply the Service member Civil Relief Act to any legal action filed against a mobilized parent while said parent is on active duty in the armed forces.

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 determined to be 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) 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 Service members 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.

ALFRA - MD 2010-02-19

Thanks to Mark Davis of ALFRA for introducing this meritorious bill and assisting with its passage.