In February 2012, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) adopted the resolution below. The resolution, Urging Congress to Respect Separation of Powers and Principles of Federalism with Regard to Enacting Legislation to Address Child Custody, was recommended for adoption by the CCJ/COSCA Government Affairs Committee.

CONFERENCE OF CHIEF JUSTICES

 

CONFERENCE OF STATE COURT ADMINISTRATORS

 

Resolution 4

 

Urging Congress to Respect Separation of Powers and Principles of

 

Federalism with Regard to Enacting Legislation to Address Child Custody

 

WHEREAS, the Conference of Chief Justices and the Conference of State Court Administrators,

 

in fulfilling their leadership role for state judicial systems, have traditionally taken

 

positions to defend against proposed policies that threaten principles of federalism or that

 

seek to preempt proper state court authority; and

 

WHEREAS, historically, the federal government has deferred to state law in matters involving

 

domestic relations; and

 

WHEREAS, in recent years, federal legislation has been introduced that would amend the

 

Servicemembers Civil Relief Act (Public Law 108-189) to address child custody

 

arrangements for parents in the Armed Forces who are deployed or anticipated to be

 

deployed in support of a contingency operation; and

 

WHEREAS, in the 112

th Congress, H.R. 1540 would have: (1) restricted temporary custody

orders based solely on deployment or anticipated deployment; (2) excluded parental

 

absence based on deployment or possible deployment in determining the best interests of

 

the child in permanent orders to modify custody; (3) made clear that a federal right of

 

action is not created; and (4) not preempted state law if the applicable state law involving

 

a temporary order provides a higher standard of protection for the servicemember; and

 

WHEREAS, federal efforts to legislate matters of child custody would preempt state family law

 

and potentially discourage state efforts to enact broader and more helpful state laws; and

 

WHEREAS, family law cases are complex and states are in the best position to balance the

 

interests of deployed servicemembers and their family members within the context of

 

their own domestic relations laws; and

 

WHEREAS, at least 30 states have already enacted state law that addresses the special

 

circumstances of parents who are serving in the military; and

 

WHEREAS, the Department of Defense continues to work with the other states, through its State

 

Liaison program, to enact specific child custody legislation and to redraft its Family Case

 

Plan Instruction to emphasize the importance of child custody planning before

 

deployment;

 

NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and Conference

 

of State Court Administrators urge the Congress to ensure that: (1) during its

 

consideration of such legislation, the Congress take all available and reasonable steps to

 

obtain meaningful and timely input from appropriate state government branches and

 

agencies with respect to principles of federalism and separation-of-powers; and (2) a

 

federalism assessment of the proposed legislation be included in every pertinent

 

committee and conference report; and

 

BE IT FURTHER RESOLVED that the Conferences urge the Congress to continue to reject

 

legislative proposals to preempt state family law.

 

Adopted by the Conference of Chief Justices as proposed by the CCJ/COSCA Government

 

Affairs Committee at the 2012 Midyear Meeting on February 1, 2012 and by the Board of

 

Directors of the Conference of State Court Administrators on February 10, 2012.