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TO AMEND CHAPTER 7, TITLE 20 OF THE 1976 CODE, TO ENACT THE MILITARY PARENT EQUAL PROTECTION ACT, TO PROVIDE THAT A MILITARY PARENT'S MILITARY SERVICE SHALL NOT BE CONSIDERED A CHANGE IN CIRCUMSTANCE FOR PURPOSES OF CHILD CUSTODY AND VISITATION, TO PROVIDE THAT THE CUSTODIAL NON-MILITARY PARENT MUST REASONABLY ACCOMMODATE THE MILITARY PARENT'S LEAVE SCHEDULE, TO PROVIDE THAT THE FAMILY COURT MAY HOLD AN EXPEDITED TEMPORARY HEARING TO ENSURE THAT THE MILITARY PARENT HAS ACCESS TO A MINOR CHILD, AND TO PROVIDE THAT ANY INCREASE OR DECREASE IN EARNING CAPACITY DUE TO MILITARY SERVICE IS NOT CONSIDERED A PERMANENT CHANGE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 7, Title 20 of the 1976 Code is amended by adding:
Section 20-7-9900. This article may be cited as the "Military Parent Equal Protection Act."
Section 20-7-9910. For purposes of this article:
(A)(1) In the case of a parent who is a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or a Reserve component, 'military service' means a combat deployment, contingency operation, or natural disaster requiring the use of orders that do not permit any family member to accompany the member.
(2) In the case of a parent who is a member of the National Guard, 'military service' means service under a call to active service authorized by the President of the United States or the Secretary of Defense for a period of more than thirty consecutive days under 32 U.S.C. 502(f) for purposes of responding to a national emergency declared by the President and supported by federal funds.
'Military service' includes any period during which a military parent is absent from duty on account of sickness, wounds, leave or other lawful cause.
(B) 'Military parent' means a parent of a child under the age of eighteen whose parental rights have not been terminated by a court of competent jurisdiction.
Section 20-7-9920. A military parent's absence, relocation, or failure to comply with a custody or visitation order shall not, by itself, be considered a change in circumstance or sufficient to justify a permanent modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the military parent's military service and deployment out of state. Any order based in whole or in part on the military service and deployment of a military parent is temporary and shall revert to the previous child custody decree at the end of deployment.
Section 20-7-9930. When a custodial military parent of a child is required to be separated from the child due to military service, a court shall not enter a final order modifying an existing custody order until the custodial military parent has completed the term of duty requiring separation. The military service shall not be used as a basis to alter or deny a permanent custody order, nor a temporary order except for an actual period of deployment.
Section 20-7-9940. When a military parent with visitation rights is required to be separated from a child due to military service, a court shall not enter a final order modifying an existing visitation order until the custodial parent has completed the term of duty requiring separation. Any modification of visitation shall not decrease the amount of visitation due to the military service.
The custodial parent must reasonably accommodate the visitation rights of the non-custodial military parent called to military service. The custodial parent must make the child available to accommodate the military leave of a military parent to ensure reasonable visitation occurs during available periods.
Section 20-7-9950. If no court order is in place, but an action is commenced, the family court shall expedite a temporary hearing in order to establish visitation or custody to ensure the military parent has access to a minor child, and that reasonable support and other orders are in place for the protection of the parent-child relationship, consistent with the other provisions of this article. The non-military parent shall not use the circumstances of the military parent's military service to disrupt or prejudice the parental rights of the military parent.
Section 20-7-9960. (A) If a military parent is activated to military service, the military parent may file and serve a notice of activation of military service and request to modify a support order by informing the court and the party receiving support of the request to modify the support order based on the income and earning capacity as a change in circumstance.
(B) Any increase in earning capacity due to military service may only be deemed for the period of military service, and shall not be deemed a permanent increase in wages, nor shall it be deemed as earning capacity for any permanent orders of child support. Upon return from military service, the earning capacity prior to activation or mobilization shall be the basis of child support, or the court may make a new determination based upon non-mobilized income of the military parent upon return to civilian employment. Military duty pay shall not be imputed as the permanent basis for earning capacity of the parent.
(C) Any decrease in earning capacity due to military service is only deemed for the period of activated service, and shall not be deemed a permanent decrease in wages, nor shall it be deemed as earning capacity for any permanent orders of child support. The court shall temporarily adjust the amount of child support for the duration of the military parent's military service according to the changes in earning capacity due to military service.
(D) A request for modification must be made within ninety days of return from military service.
(E) Modification of child support shall be effective on the date the Notice of Activation is filed with the court, the date of notice to the party receiving support, or the date of actual military service, whichever is later. The modification shall revert to the latest date if the court finds military necessity precluded the ability to file or notify the other party, or if through no fault of the military parent, the party receiving support could not be served with notice.
Section 20-7-9970. (A) Military necessity may preclude court adjudication before mobilization, and the parties are encouraged to mitigate the circumstances surrounding the mobilization.
(B) The non-military parent has an obligation to accommodate the military parent. The military parent is under an obligation to provide timely information to the non-military parent.
(C) The failure of a non-military parent to reasonably accommodate the leave schedule of the mobilized military parent, an unreasonable delay of proceedings by the non-military parent, or the failure of the military parent to provide documentation may be grounds for the court to award attorney fees.
(D) Any agreement of the parties with or without a court order shall not be imputed as a change of circumstances. Any agreement of the parties surrounding the military mobilization shall be deemed settlement offers and not admissible for issues other than attorney fees.
SECTION 2. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, June 22, 2009 at 3:09 P.M.