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TAKING CHARGE


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RESOURCES - SINGLE AND DIVORCING PARENTS

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Comments

I am so glad I happened to stumble in here. I actually don’t have much knowledge on how child custody is dealt with military fathers. It is a good thing here is this article.

Raul, I am not sure exactly what you are asking because I could not read all of your post (I don't know what some of the typos were meant to say).

If your question is about how to locate the service member to serve him or her with process, the Court can enter an order compelling that SM's parent (the grandparent in this case) to cough up the address.

The laws of each state vary as to what can happen in terms of custody during deployments. In Michigan, a court may grant a temporary order to the non-deploying parent. Non-custodial parents have a greater right to custody than a third party such as a grandparent.

The applicable statute says:

"If a motion for change of custody is filed during the time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child. Upon a parent's return from active military duty, the court shall reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court shall not consider a parent's absence due to that military duty in a best interest of the child determination."

Greetings! Seeking guidance on how to locate the whereabouts of a soldier in basic training and left without notifying the court and the noncustodial parent of the minor leaving basic school. Failed to notify, or call to say the least who you would leave, or where. (After 4 days we knew that this child with the maternal grandmother and q She granted him a power to keep the child, but without my consent). A motion was requested urgently and we were waiting for hearing date to decide temporary custody. q think the court granted me temporary custody? if possible? thanks

I have joint legal custody of my two children and their father is being deployed in May. I have contacted the courts to get my children when he is away and they are telling me that his very new wife can keep them in his absence. I think its in the best interest of my children to be with their mother when dad is away, I am very capable and fit to have them as far as the eye can see there is no reason why I shouldn't get them back. Hoping for some advice, feeling very lost. Thanks

Erika, I have several ideas for you. I am in the middle of a parental abduction case, however, and have no ability to have the lengthy discussion with you about your options or procedures. Please call Ginger at my office to schedule a consultation. Jeanne

I live in Michigan currently and have full physical and joint legal custody of my 10 year old. My husband is active duty military stationed here in Michigan and has been my son's primary caregiver/source of support for the last 4 years. He is an active part of all my son's needs...he takes him to doctor appointments, goes to all school functions and conferences, volunteers at his school, coaches all his sports teams, participates in his councelling sessions, etc.

My son's biological father plays a minimal role in his life, only exercising his parenting time occassionally and does not pay his court ordered child support of $40 per week. He has had numerouse bench warrants issued for failure to pay support or show up to court hearings. And he is now serving time in a county jail here in Michigan on retail fraud, receiving and concealing, and felony escape charges as he decided that he could make his living by stealing from stores and selling the items on the street. Fortunately, he got caught and is now paying the price. Needless to say, he has not been a huge part of my son's life nor does my son even ask about him anymore.

My son has not seen his father since the first weekend in February of this year. He was taken into custody and began serving his time in April until at least the end of the year from my understanding. As you can see, that was 2 months after he last saw his son, so you can see how much he actually exercises his parenting time.

I have documented every visit from the time he picks our son up to the time he brings him home and every phone call, etc over the last couple years. I just keep a list going to have proof when I go to court if ever needed. I also have copies of numerous coorespondences with the FOC stating concerns I have had with visitations that, in my opinion, put my son in harms way.

Now, my husband is about to receive orders. We will probably be leaving Michigan within the next 3 months. My custody order, though, only allows me to move within 100 miles without court permission I believe. We just have the standard order with standard visitation. My questions is, given this past with my son's father, will I have any problems getting court permission to move with my son to our next duty station? Is there a stipulation in Michigan that will allow me to move with him on military orders? Do I just file a motion with the FOC for relocation?

I appreciate your review and response to this! I see that you helped out a fellow military wife, and friend of mine (whose husband is here with mine), last year, so I am hoping you can help me to!

Jeannie, thank you for your comment. Your case has some serious elements that I don't want to discuss on this blog for reasons that will be obvious when we talk. Please telephone me during office hours. You have some legitimate concerns and I would like to review them with you.

Jeanne

I am hoping you can give us some help or direction. My husband has served 17 years and has 3 left until he can retire. We were fortunate enough to be able to return to MI, his home of record and our actual home town on orders. He has 2 children from a previous marraige. His ex is currently in Okinawa with her military husband for about 2 more years. We have custody of both of his children, ages 7 & 9. One case is in Michigan. We filed when we found out she was trying to move to Okinawa and she never responded/answered/acknowledged the papers we filed for custody of the 9 yr old that was living with us at the time, so the court granted my husband sole physical custody and joint legal with MI courts having jurisdiction. The 7 year old child had resided with her in NC so the courts there took jurisdiction over that case. In the end, about 2 months before our actual court date in front of a judge, out of no where, she decided to let the child live with us. We were contacted on March 26 and the child was sent here to MI on April 9, 2009. We have our thoughts as to why, but are just grateful she is in Mi and not Japan. Our issue comes with my husband being possibly due for orders somewhere else. Michigan is our home and where we intend to come back to. Our oldest are starting high school and we do not want to uproot everyone at this stage to bring them back in 2 years. If he were to take orders out of the country for 2 years, could she take custody of the children back? We cannot afford for him to take them with him where ever they may send him and maintain 2 household. His oldest child has lived with us since March 2008, and 3 summers prior. The younger one since April 2009 and summers prior. She has seen the children 4 days in May, 4 days in Sept and then not again until her court ordered spring break visit in April for 8 days and then 2 months for this years summer visit. I would like to add that she was in the states for 6 weeks and only saw the children for 4 days, but did spend 10 with her husband who was stateside for something work related in Va and the rest with her family on the west coast. Communication has been about 1 phone call a week from their mom. All of our children are very involved in school and sports, as are we with coaching and team parent positions. We have family and friends which provide us a very good support network where we live as well. We are unsure of what the best course of action would be if he is not extended here in Mi and has to move. Is it best to try and deploy until he can drop his retirement papers? Can he go to Okinawa and still have the children live in Mi with me, as the step mom, while following the visitation schedule we have or even allowing her holidays he will not be here if she comes to the states? We do not want to lose custody of the children we fought to gain but are unsure what direction to go for answers.

Thank You

First of all, I am sorry if you thought I was talking about your response. I didn't mean about your free legal advice. I was talking about my comment that I posted as a question.
Secondly, you mentioned "dear john" letter. We were married, divorced because he cheated on me when he came back from Iraq. I did not cheat or try to do anything. I waited while he was in Iraq, saved money, building a family. When he came back, he went out partying and cheated on me while I was pregnant with his baby. He then took my money so he could go out. He didn't give any child support, including diaper money either. He took money I had for the baby and went out for new years eve party, when the little baby was being discharged from NICU. He never watched her either. Therefore, I couldn't go to work or anything either to have money for the baby. I am not trying to deprive MY daughter the access to the other parent. As a result of his own choice, she doesn't know about him other than his name. He was just on vacation from Afghanistan and he or his new wife didn't want to come to see her because they wanted to go on vacation to Arizona.
I appreciate your free legal advice. But you should also watch what you have to say when you do not know all the details behind.

Tara, you haven't given me enough details to work with. It appears that the judgment of divorce may have been granted in Michigan, but it's not all that clear. So I am not sure what you are asking. Are you asking if a Michigan court needs to enter an order for relocation?

Clearly, you have several problems. Service of process. How can you get personal service over someone who is a service member in Afghanistan?

The right to relief from civil process. A service member has the right to seek an adjournment from any action in a state court if he or she is on active duty. See the Judge's Guide to the Service Members Civil Relief Act. http://tinyurl.com/yc7jc9m This means that you might not be able to get a court order to move until your child's father returns from Afghanistan.

In addition, your post raises two other issues. Why would you put your life ahead of that of someone serving our country? What would a "Dear John" letter mean to your child's father? Would his emotional distress at receiving such a letter affect his performance and endanger him? Endanger members of his service group? Think about that.

Also, in the five years I have been blogging, I have never received, until yours today, an email asking me why I had not posted a comment and responded to it. What is it about you that makes you think you are so special that you deserve free legal advice? Think about that.

Think, too, about the fact that this is not just "your daughter" (as in your repeated "my daughter" above). Your child has two parents. I suggest you may wish to consult a counselor about the effects on a small child when one parent deprives the child of access to the other parent.

I posted a question over the weekend regarding my ex being deployed and proof of service while filing a motion for change of domicile but do not see the post on here.
Is there a reason why it's not being approved...? :(

Thank you.

I have full physical custody of my daughter and we have joint legal custody. When the divorce was granted, my ex was physically in Colorado as that was where he was stationed at. He is active service member. She was actually born in Colorado also. He is not close with my daughter at all or even really practice his right to the parenting time. He has never lived with her in her life. My daughter and I moved from Colorado back in March of 2006 when she was 3 months old. He saw her once in Michigan after we moved from Colorado. He saw her once in Colorado when his mom took her to Colorado with her. He has not seen her once since the divorce was granted October of last year.

My daughter and I are trying to move to Florida from Michigan and I have filed motion to change the domicile.
Problem is that he is currently deployed to Afghanistan and we have not been able to serve him yet although we tried through Military Police and Rear Detachment...so we do not have proof of service at this point. We are trying for temporary change of domicile as he comes back in about 5-6 months.
I do not have any family members in Michigan who can help me with her other than my ex's family. My financial situation is not that good at this point and there is a very high possibility of me losing job soon. I am engaged to someone from Florida and there is better job possibilities in Florida.
It is obvious that "there is clear and convincing evidence that it is in the best interest of the child" in us moving to Florida than staying in Michigan as it will benefit both me and my daughter emotionally and financially. Also us moving does not interrupt the parenting time either. The current parenting time in ther judgment order is liberal.
Would it still be possible for the court to grant the temporary order when we are unable to serve him based on the fact that there is the evidence it is in the best interest of the child?

Thank you.

You have an absolute right to custody of your daughter while your ex-husband is deployed to Iraq. What your ex-husband and his wife propose is nothing more than "third-party custody." Since the decision of the U.S. Supreme Court in Troxel v Granville, 530 U.S. 57 (2000) and in Michigan of DeRose v DeRose, 469 Mich 430 (2003), it's more clear than ever that for a third party to have custody of a child, the third party (this would be the step-parent in your case) must show the parent unfit. Said another way, for your ex-husband lawfully to deprive you of custody of your child during his
deployment, he would have to go to court and prove that you are an unfit mother.

Obviously, he doesn't believe that you are an unfit mother or he would have been in court opposing your summer parenting time.

The quickest strategy, and least expensive, is for you to tell him what I've told you above. Tell him that it will be expensive to institute legal process, but that you're willing to go there if he wants to do so. He cannot prevail.

You can show him the Blog article you were reading that describes Michigan's statute that protects his custodial rights upon his return from Iraq. He's been listening to too many deployment horror stories. The two of you can get together and fashion a workable Family Plan that provides for your child to be returned to him upon his return from Iraq.

Please contact me if you have any problems with this and we'll talk about whether I can personally help you or whether I need to refer you to one of my esteemed colleagues.

Best to you. Jeanne Hannah

I currently reside in NC and have joint legal and physical custody of my daughter while her father retained primary physical custody. The court order was issued in Michigan as that is where my daughter resided with her father when the motion was filed. My daughter is currently staying with me for the summer and her father entered into a 4 year active duty military contract. He was transfered to NC (the same town where my husband and I reside)and will be deploying for a year to Iraq. We had a verbal agreement that our daughter would stay with me during his deployment and attend school with her brothers as his wife had opted to stay in Michigan until he returns from deployment. Today I received a phone call from him stating that his wife does not want both of them gone for a year and that my daughter should return to Michigan for the school year. While I understand their difficult situation it seems unfair that I should be left out of the decision when I have joint legal custody. He had previously stated that if my daughter was not with me then she should be with him (not with grandparents, etc). I feel that if she is not going to reside with him then she should be with me and her brothers until he returns from deployment. He has already moved to NC and we have joint legal custody so what are my options at this point?

Mrs. Pagan,

You should review the cases and law I cited in this post so that you and your husband fully understand the importance of the recent amendment to MCL 722.27. This law doesn't allow a court to enter an order modifying or amending a previous custody order (the one that placed your husband's children with you, for example) after your husband is deployed unless there is clear and convincing evidence that it would be in the children's best interests to do so. Since the mother hasn't seen the children in four months, it would be difficult for her to prove her case by clear and convincing evidence.

Your husband needs to do two things to protect the children from a change in their custody in the event of his deployment. First, he needs to postpone notification of the deployment as long as possible to avoid a motion being filed prior to his departure, which allows the statute to protect the children's placement. Second, he needs to execute a letter of intent nominating you as the children's guardian during his deployment (See my website www.traversecityfamilylaw.com/Articles2.htm in the Military Family section for a sample letter of intent.)

I am a military wife. My husband has custody of his children who ( obviously ) live with us. If he gets deployed, will I be able to keep the children here with me? Does we need to draw up a certain type of legal document for me to do so. Also note that the mother has not seen her children for four months and in those past four months she has only called twice.
Please let me know.

Thank you,

Mrs. Pagan

Ms. Mackowiak:

I suggest that you carefully read the Holmes case and the recent amendment to MCL 722.27.

That amendment says that:

"If a motion for change of custody is filed during the time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child. Upon a parent's return from active military duty, the court shall reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court shall not consider a parent's absence due to that military duty in a best interest of the child determination."

Thus, the court may enter a temporary custody order (or a modified parenting time order) if there is clear and convincing evidence that it is in the best interest of the child.

Although you do not state this, I assume that the father is attempting to leave the child with a grandparent or a step parent. I would cite Troxel v Granville and Helzel v Heltzel, 248 Mich App 1 (2001) for the proposition that a fit parent has the right to extended parenting time during this deployment rather than to have placement of the child with a third party. For more references regarding the rights of third parties, see section 12.22 of Michigan Family Law (Hon. Marilyn Kelly et al eds, ICLE 6th ed 2006)

In particular, note in that section, the role of the parental presumption and the burden of proof issues when the other contestant is, in reality, a third party.

I am a lawyer in Escanaba, MI. I presently represent the non-custodial mother. The father was just deployed 3 weeks ago. We filed a motion for extended parenting time before he was deployed. The father through his attorney is asking for a STAY and is also sighting SSRL and MCL722.27 stating that the court cannot change placement of the child.

We are not asking for change of custody....only extended parenting time while father is gone.

Is there case law to support my position?

Please advise. Thank you.

Jayne Mackowiak
100 South 8th Street
Escanaba, MI 49828

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