Relocation of a parent or child is complex in any child custody case, however when relocation is a result of military duty, the issues are even more complex. The past two decades of deployments has caused legislators to take note and pass legislation to try to protect the custody and visitation rights of servicemembers across our country. Oklahoma has developed a wide range of laws to protect servicemembers in Oklahoma in custody and visitation disputes, but the battle to defend servicemember’s parental rights is not yet won.
Most child custody cases involving relocation are as a result of one parent voluntarily moving. However, for servicemembers, many times moving is not a choice but an order. Additionally, failure to comply with a lawful military order can subject a servicemember to nonjudicial punishment, administrative action or courts-martial action under the Uniform Code of Military Justice. Until very recently, many servicemember parents were essentially being punished for serving their country, as it related to relocation and child custody.
Issues often arose when a servicemember had custody or visitation rights of a child or children whose other parent was not the servicemember’s spouse. When ordered to deploy on short notice many servicemember parents did not have sufficient time to give proper notice or transfer child custody prior to deployment, which resulted in their loss of custodial rights. In some cases, servicemembers lose their custody rights during military duty.
OKLAHOMA RELOCATION STATUTE
The Oklahoma Relocation Notification of Children statute1 specifies multiple requirements a parent must meet, including providing the following information to the other parent prior to relocation: relocation timelines, reasons for the move, proposed visitation schedule and exact address.
Oklahoma family law presumes it is in the best interest of every child to have a strong continuous relationship with both parents.2 Therefore, timely and meaningful notice must be provided to a former spouse or other parent of child prior to moving a child or children out of state. A party seeking to relocate with a child must provide notice to the other parent or party with custody or visitation rights as soon as practicable or at least 60 days prior to the relocation.3 The nonrelocating party or former spouse has the right to seek a court order to stop the relocating party from moving out of state with the child(ren). At the hearing, the court will decide whether the proposed move is being made in good faith or whether it is an attempt to deprive a party of visitation or physical custody of their child(ren).
RELOCATION NOTICE REQUIREMENT
The notice required prior to moving out of Oklahoma with a child(ren) must include the specific requirements found in Okla. Stat. tit. 43 §112.34 in order to comply with Oklahoma family law. However, these requirements are nearly impossible for servicemembers to comply with when relocation due to service obligations occur on short notice.
The law requires, among other things:
- Serve notice of intent to relocation on the other parent and/or party entitled to visitation, including:
- The intended new address;
- The new mailing address, if different;
- The home telephone number, if known;
- The date of the intended move or proposed relocation;
- Specific reasons for the proposed relocation of the children; and
- Revised visitation or custody schedule;
- The notice must be provided on or before the 60th day before the proposed move, unless the party could not reasonably have known and then notice must be provided 10 days in advance;
- The notice requirement exists so long as a party has a right to custody or visitation;
- Contempt of court may be sought for failure to abide by these requirements;
- The court may consider failure to notify in modification of custody or visitation;
- Attorney fees and costs may be assessed for failure to give the required notice; and
- Relocation is authorized if the party notified of relocation does not file an objection within 30 days of notice of intent to relocation.
PROCESS TO OBJECT TO RELOCATION
A party must file an objection with the court in order to initiate an objection to relocation. However, it is crucial a party acts as soon as possible to avoid waiving the right to object, which expires 30 days after notice, as stated above. The party objecting is entitled to a hearing in court. At the hearing, a party may be able to have the other party parent/custodian forced to return to Oklahoma, return the child(ren) to Oklahoma or seek contempt of court for violating the relocation statute,5 which should be an existing order in your custody case. These principles are well intended; however, they do not apply logically to a deploying service member on an accelerated schedule with multiple other service and personal obligations to take care of before shipping out.
OKLAHOMA LEGISLATURE’S RESPONSE
To address the growing problem of the relocation statute’s negative effects on service members, the Oklahoma Legislature moved to enact the Oklahoma Deployed Parents Custody and Visitation Act (ODPCVA) to protect the rights of servicemember parents and their children in custody disputes. The ODPCVA was an attempt to preserve the relationship between servicemember parents and their children during periods when a servicemember parent would be absent as a result of military service.6 The ODPCVA was designed to protect the rights of deployed servicemembers parents and their children in the following ways:
- Ensuring that child custody arrangements in place before they deploy will be re-instated post deployment; and
- Designating a person with a close relationship to the child, including stepparents, siblings and grandparents, to exercise the deployed parent’s visitation rights during deployment.7
When a parent is deployed and seeks relief under the ODPCV, the deploying parent has a right to transfer his or her visitation rights to a stepparent, a designated family member or another designated individual.8 Within The ODPCVA, there is a rebuttable presumption that it is in the best interest of the child for a stepparent, designated family member or another designated person to exercise the deployed parent’s custodial rights and duties.9 The ODPCVA provides protections to both parents and guardians with child custody matters during deployment.10
In order to qualify under the ODPCVA, a servicemember parent must show the following:
- He or she is a deploying parent; and
- His or her mandatory leave qualifies as deployment under the statutory definition.11
KOHLER V. CHAMBERS – REDUCING MILITARY PARENT PROTECTIONS
With the procedures and policies of the ODPCVA codified in statute, the issue moving forward is whether or not the Legislature did enough to protect servicemembers in Oklahoma. The Oklahoma Supreme Court made it clear earlier this year, the Legislature did not. Unfortunately, the Oklahoma Supreme Court’s recent ruling in Kohler v. Chambers shows there are gaps in protection for servicemember parents and their children involved in custody and visitation proceedings.
Kelley Kohler, a married man with three children, received orders to report for basic training and advanced individual training with the United States Army National Guard.12 In April 2012, Kohler had a daughter, R.L.K., with Carolynn Chambers.13 In December 2016, Kohler and Chambers entered into an agreed decree of paternity and joint custody plan.14 Under the plan, Kohler and Chambers split custody equally and followed a week-on-week visitation schedule.15 Every other week, R.L.K. lived with her father, stepmother and two younger half-siblings.16 In August 2017, Kohler received an order from the Department of Defense Military Entrance Processing Station commanding him to report to initial active duty for training.17 The order required Kohler to complete nine weeks of basic training in South Carolina and 19 weeks of individual training in Virginia.18 During these seven months of training, Kohler was not allowed to travel with his spouse or children.19 Immediately, Kohler filed a motion seeking an order authorizing the temporary transfer of his custody and visitation rights with R.L.K. to his spouse, R.L.K.’s stepmother.20 He asserted his right to transfer custody as a deploying parent under the ODPCVA.21 After an expedited hearing, the trial court affirmed Kohler’s motion and granted Kohler’s spouse custodial rights during Kohler’s leave on the grounds that 28 weeks (seven months) of mandatory training qualified as deployment under the ODPCVA.22 In response, Chambers filed a motion to vacate the judgment, arguing the trial judge erred as a matter of law by treating Kohler as a deploying parent under the ODPCVA.23 The trial court denied Chambers’ motion and upheld its previous ruling that Kohler’s leave entitled him to relief under the ODPCVA.24 Chambers appealed the trial court’s order to the Oklahoma Supreme Court.25
The Oklahoma Supreme Court analyzed the ODPCVA and its intent to determine whether Kohler was a deploying parent under the act.26 To determine whether Kohler was a deploying parent, the court first considered whether his mandatory leave qualified as deployment.27 Deployment is defined as “the temporary transfer of a servicemember in compliance with official orders to another location in support of combat, contingency operation, or natural disaster requiring the use of orders for a period of more than thirty (30) consecutive days, during which family members are not authorized to accompany the servicemember at government expense.”28
In finding Kohler met the statutory requirements as a servicemember who received military orders requiring him to leave his family for more than 30 days, the court limited its inquiry into whether Kohler’s leave for training was “in support of combat.”29 Unfortunately, the act failed to include a definition for “in support of combat.”30 The court found the lack of definition problematic because of the possibility of an overbroad application from a literal reading of “in support of combat.”31 It held that “a literal reading of ‘in support of combat’ would be so overreaching as to create an absurd result not intended by the Legislature.32
Labelling the statute ambiguous, the court looked to extrinsic sources for help in defining the phrase. Finding no definition of “combat” in Oklahoma legislation, the court improperly relied on the Internal Revenue Code’s definition of combat zone, “any area which the President of the United States by Executive Order designates … as an area in which Armed Forces of the United States are or have engaged in combat.”33 In reliance on this definition, the court held that “it is clear that Father’s training was not deployment for ‘combat’ or in ‘support of combat.’”34 After a de novo review, the court reversed and remanded the case, holding that Kohler was not a “deploying parent” because his seven-month leave was not “in support of combat, contingency operation, or natural disaster.”35 This ruling is opposed to the spirit and statutory interpretation of the ODPCVA as well as the Servicemembers Civil Relief Act (SCRA).36
The United States Supreme Court held in Le Maistre v. Leffers,37 “the act [SCRA] must be read with an eye friendly to those who dropped their affairs to answer their country’s call.” Simply stated, the United States Supreme Court has held the SCRA should be read in favor of the servicemember the act, as the ODPCVA, was intended to protect. A servicemember is qualified for the multiple SCRA protections, including a stay of civilian legal proceedings, if performing military service, which is defined under the SCRA as follows:
- Full-time active duty members of the five military branches (Army, Navy, Air Force, Marine Corps and Coast Guard);
- Reservists on federal active duty; and
- Members of the National Guard on federal orders
for a period of more than
These protections take effect immediately upon receipt of military orders for reservists, including National Guard soldiers placed on active duty.39 The Oklahoma Supreme Court failed to consider the best interest of Kohler and his daughter. Despite the court’s assurance “of course our paramount concern in any proceeding involving custody or visitation is the best interests of the child,” the court did not give any consideration or even discuss whose custody was in R.L.K.’s best interest.40 Had the court put more emphasis on the best interest of R.L.K., it likely would have agreed with the trial court and vested custodial authority to R.L.K.’s stepmother, with a longstanding relationship with her stepdaughter, during Kohler’s leave. As Kohler indicated in his pleadings, transferring his custody to R.L.K.’s stepmother was his effort to preserve his family unit, while he served his country.41
Kohler worried “[R.L.K.’s] routine, structure and well-being would be adversely impacted during his deployment if his parenting rights were not transferred to his wife.”42 If R.L.K.’s stepmother had temporary custody, R.L.K.’s routine would remain the same. Like always, R.L.K. would stay with her mother for one week and then stay with her stepmother and younger siblings the next week. The joint custody plan between Kohler and Chambers was created so R.L.K. could spend a significant amount of time with her father, her stepmother and her younger siblings.43 At no point did Chambers give a reason for why transferring custody to R.L.K.’s stepmother would be contra to her daughter’s interest. 44 Additionally, Chambers did not dispute Kohler’s spouse had a substantial and close relationship with R.L.K., thus failing to rebut the statutory presumption. Instead Chambers’ argued Kohler’s custodial rights should not be transferred to R.L.K.’s stepmother because his mandatory leave for training did not qualify as deployment.
The Oklahoma Supreme Court failed to consider the legislative intent behind the ODPCVA in finding Kohler was not a deploying parent under the act and failed to consider the implications of the most relevant federal statutes, the SCRA. The primary goal of statutory construction is to ascertain and effect the intent of the Legislature.45 When a statutory phrase is susceptible to more than one reasonable interpretation and is therefore ambiguous, the court is required to determine the legislative intent and to give the statute a reasonable and sensible construction that will avoid absurd consequences.46 When there is any doubt as to the purpose or intent of a statute, it may be resolved by resort to other statutes relating to the same subject matter.47 The most obvious example being the SCRA, which is a federally codified act intended to protect servicemembers from adverse action when they enter active duty service, including orders outside of combat.
The purpose of the act is to protect a “deploying parent,” a “legal parent of a minor child … who is a member of the United States Armed Forces and who is deployed or has been notified of an impending deployment.”48 The Oklahoma Supreme Court does not dispute that Kohler is the legal parent of R.L.K. and that he is a member of the U.S. Armed Forces.49 The court’s only issue is whether Kohler’s mandatory order to attend training constitutes as deployment.50 The question thus becomes whether training, an early and essential part of military service, constitutes as deployment under the act.51 The court reasoned that Kohler’s mandatory leave to attend training did not qualify as deployment because training is not “in support of combat.”52 The court feared a literal reading of “in support of combat” “would be so overreaching as to create an absurd result not intended by the legislation.”53
THE ABSURDITY CANON
The court’s reliance and liberal application of the absurdity canon in Kohler was misplaced. As the dissent points out in McIntosh v. Watkins, “[e]ven when applicable, the absurdity canon provides a very narrow exception to [the court’s] duty to apply the plain meaning of a statute.”54 In the rare circumstance the plain meaning of a provision is to be ignored because the court believes the legislation could not have intended what they wrote, “it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.”55
Recently, in McIntosh, the Oklahoma Supreme Court appropriately applied the absurdity canon when a literal reading of a statutory provision was so absurd the legislation could not have intended what they wrote.56 A defendant who was driving under the influence rear-ended a vehicle, injuring the two passengers.57 When both vehicles pulled over to discuss the accident, the defendant returned to his vehicle and fled when the plaintiff went to call the police.58 The defendant was later arrested and charged with driving a motor vehicle while under the influence of alcohol and leaving the scene of an accident involving damage.59
Later in court, an issue arose regarding whether the plaintiff was entitled to treble damages for the damage sustained to his vehicle.60 The applicable statute stated that treble damages are available only in an accident “resulting only in damage to a vehicle…”61 Since the plaintiff sustained physical injuries in addition, the trial court ruled he was not entitled to treble damages.62 The Oklahoma Supreme Court reversed the lower court, stating the statute applied even if a victim sustains an injury.63 The majority held that the statute was ambiguous and by including physical injury, the opinion prevented an absurd interpretation that would lead to greater harm.64
In McIntosh, a literal application of the statutory provision would be absurd and prevent a victim from bringing a civil action for treble damages for suffering physical injury. The court’s interpretation maintains the obvious public policy for treble damages: deterrence from fleeing the scene of an accident.
In Kohler, anything but a literal reading of “in support of combat” would be an absurd result, contrary to the underlying public policy. As pointed out in Kohler’s pleadings, according to the court’s definition, “some parents – those who are under orders to be separated from their families for long periods of time would be given the protection of the act, and their children would receive its benefits. Others, in the same situation but for the point they have reached in the military career, would not.”65 Such a result would completely undermine the legislative intent and public policy aims to protect the rights of servicemember parents and their children. Unlike in McIntosh, nothing negative or unfair would result from a literal reading of “in support of combat.” A military servicemember would not act in support of combat operations unless they have received the appropriate training. To distinguish training from deployment would be contra to public policy by deterring servicemember parents from joining the military in fear of losing custodial rights during the initial training stage.
UNIFORM DEPLOYED PARENTS CUSTODY AND VISITATION ACT
The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) is a national response to address custody and visitation issues for servicemembers. Oklahoma has not enacted the UDPCVA; however, 10 states have and others are pending enactment. Both acts are intended to provide additional protections beyond the SCRA discussed above. In light of the Oklahoma Supreme Court’s doubt as to the intent of the phrase “in support of combat,” it should have considered Article 1,
Section 102 of the UDPCVA. The subject matter of the UDPCVA is similar to the ODPCA, unlike the Internal Revenue Code. Oklahoma Legislature enacted an early version of the UDPCVA, which spoke of “deployment” in strict terms as to support of combat.66
The current version of the UDPCVA accounts for the majority of “military absence” triggering rights and duties under the Oklahoma Act, the ODPCVA. Article 1, Section 102 defines deployment as:
[T]he movement or mobilization of a service member for more than  days but less than  months pursuant to uniformed service orders that: a) are designated as unaccompanied; b) do not authorize dependent travel; or c) otherwise do not permit the movement of family members to the location which the service member is deployed.
Col. Mark E. Sullivan, a retired Army JAG, served on the Drafting Committee for the UDPCVA.67 In an article reviewing the Kohler case, Col. Sullivan stated the Drafting Committee debated the definition of deployment; however, no compelling reason was found to limit the protection of the act to a strict “deployment” definition; only encompassing military operations.68
The ODPCVA was enacted to protect the rights of servicemember parents and their children; however, the court in Kohler identified a gap in the act’s protection and focused on that gap in reaching its decision. The custodial rights of servicemember parents in the early stages of their careers remain in jeopardy so long as the court continues to distinguish mandatory training from deployment and fails to prioritize the best interest of the child in custody proceedings. Protection should be afforded to every servicemember that raised their hand and volunteered to risk sacrificing everything to stand and defend our great nation. Subsequent to the court’s decision in Kohler, the Oklahoma Legislature should amend the ODPCVA to mirror the UDPCVA and protect all servicemembers serving our country from losing their rights to custody or visitation, regardless of service obligation.
The Oklahoma Supreme Court’s decision in Kohler is a step in the wrong direction for servicemember’s parental rights. However, the ball is now in the Oklahoma Legislature’s hands to correct the interpretation issue identified by the court in Kohler. Every soldier, marine, sailor or servicemember that raised his or her right hand to sacrifice all to defend our nation deserves nothing less than all the protection available by judges and legislatures in protecting their parental rights. Relocation of parents and their children is a delicate legal issue. However, the rights of servicemembers cannot be forgotten.