Mark E. Sullivan is today's Guest Author. This is an article about military parents who have sole or primary custody, and how military absences can affect their custody orders and their military family care plans. The first section of the article will cover the ground rules for protecting and advising a military custodian as to mobilization, sea duty, deployments, and other military absences. Please see the bottom of this post for Mr. Sullivan's Author Bio.
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[The previous section of this article covered the ground rules for protecting and advising a military custodian as to mobilization, sea duty, deployments, and other military absences. It also outlined the key points in maintaining military custody for a parent in uniform, dealing with the custody claims of the other parent during a military absence, appointing a step-parent or relative as alternate custodian, and to resuming custody when your client returns from overseas.]
Despite good planning, many military custody cases hit a “bump in the road” and overturn. Sometimes there’s good planning, and sometimes there’s NO planning. The results – which usually involve the absence of the military custodian with no legal back-up custodian outside of the other parent – lead to heartbreak, surprise, legal expenses, and sometimes child endangerment.
The reality in military life is that travel and reassignments are constant factors. No one stays in one place very long. Plans must be made for the day when a military custodian cannot be there to take care of the child due to military duties.
But some military custodians, it seems, do little planning for the eventual day when “military absence” removes them from caring for the minor child or children. Sometimes it’s a remote tour, such as to Iceland, Korea, Turkey or other places where military rules designate the assignment as “unaccompanied.” Sometimes the mission is called TDY, or temporary duty; often these assignments are unaccompanied. Assignments to combat zones and hostile fire areas are likewise without dependents. Any military absence can become a stumbling block in a case where the parent in uniform has sole or primary custody of the child. Here’s an example from mid-June 2014:
Submarine duty no defense in child custody case
by Dennis Pelham
Daily Telegram Staff Writer
The Daily Telegram - Adrian, MI
Being posted on a submarine in the Pacific Ocean does not exempt a father from obeying child custody orders, a judge ruled Monday in Lenawee County Circuit Court.
If Matthew Hindes is not available, then his current wife should have returned his daughter to the girl’s mother, said Lenawee County Circuit Judge Margaret M.S. Noe. She ordered last week that the child be placed in Angela Hindes’ custody in Adrian pending the outcome of a hearing on a custody petition she filed last year. The 6-year-old girl, Kaylee, is in Washington state with Matthew Hindes’ wife, Benita-Lynn Caoile Hindes.
Attorney Rebecca Nighbert of Adrian asked for a stay in the case under the federal Servicemembers Civil Relief Act. The law provides a 90-day stay in civil court proceedings if military service affects a member’s ability to participate. Matthew Hindes is a petty officer in the United States Navy, currently assigned to the USS Michigan. The submarine is now somewhere in the middle of the Pacific Ocean, Nighbert said. She presented a letter from a Navy administrative officer to confirm his duty posting.
Noe denied the motion for a stay, ruling that he could have arranged for his wife to bring the child to her mother. “At this point, I don’t think I have any alternative but to enter a bench warrant for his arrest,” Noe said. “If the child is not in the care and custody of the father, the child should be in the care and custody of the mother”….
Nighbert said the wife has put together money to pay for a flight from her home in Washington, but does not yet have money to rent a car to drive to Adrian from the airport. Angela Hindes offered to drive to the airport to pick up her daughter. Noe agreed to waive an existing order that the wife not be present during the transfer of custody for parenting time.
Noe delayed her order for a bench warrant until Friday to allow the wife to bring the child to the airport. Noe also ordered the pre-trial hearing in the custody case to continue at 9 a.m. Monday, June 23.
Matthew Hindes was given custody of his daughter in 2010 after she was removed from Angela Hindes’ home by Michigan Department of Human Services’ Child Protective Services. An Oct. 1, 2010, divorce judgment gave him permanent custody, but Angela Hindes petitioned for a change in the custody order in August last year.
Analyzing this article requires guessing about a lot of facts, rules and information. There are certainly more questions than answers here. Not much is revealed in the article about the relationship of the parties, the terms of the custody order, the logistics of the divorce settlement negotiations which probably led to dad’s getting custody, whether the father requested a stay of proceedings under the Servicemembers Civil Relief Act (SCRA), and the provisions – if any – for the child should the father become unavailable due to military absence (remote tour, deployment, TDY – temporary duty- or other reasons). Here are some of the questions about which the reader remains clueless:
- Did the custody order mention the protective order which removed the child from the mother’s home? If not, why?
- When the divorce court granted the father custody, did it grant visitation to the mother? If so, why?
- If the mother’s actions were serious, why didn’t the father go to court and demand termination of the mother’s parental right? Or at least termination of her visitation rights?
- What recitation, if any, is in the current custody order about what mom did to merit intervention by Child Protective Services? Was it a temporary lapse of judgment, or serious endangerment? Is it likely to happen again?
- When the father received notice of his impending sea duty, usually months in advance of the mission, did he immediately schedule a court hearing so that he could testify about the situation, the child’s needs, and why he wanted to have the child bar any contact with the mother, or at least order supervised visitation?
- Was the mother’s visitation, if granted by the court, structured as supervised visitation? If not, why? Did the father demand a hearing on this so that, while we was in court and available in person, he could press his case for NO visitation or – at least – supervised visitation?
- Did the father, upon being given custody, simply consent to the order and drop his other legitimate demands, such as the payment of child support and the restriction of mom’s access to the child (in favor of his new wife as alternate custodian)?
- Was there perhaps a trade, which is common in domestic cases like this – custody to the father in exchange for no mention of the mother’ wrongdoing and the waiver of child support from the mother? What were the terms of the bargain?
- Did the father ask for a stay of proceedings under the SCRA? If so, did he provide the essential parts of a stay request (i.e., a communication stating how his duties prevented his participation in the court hearing, as well as a date when he could be present, and a communication from his commanding officer stating that his military duties precluded his departure for the hearing and that he would not be granted leave)?
However the court order was written, it clearly did little to protect the child during the period when dad was at sea. Such duties for sailors are expected. They are part of the job description which begins, “You are now a member of the United States Navy….” All Navy personal – “sailors” – are expected to serve at sea regularly.3 It is hard to imagine a judge’s overlooking this fact of life, or the attorney for the father leaving out any plans for “sea duty” from the custody order which he or she either drafted or reviewed before it was signed by the judge and filed.
Note also that no custody order is ever permanent. Such orders may be adjusted when there is a change of circumstances. Who would argue that the incapacity of the father, to whom custody was given, to care for the child is not a change in circumstances? To put it another way, ask any military parent who has visitation (not custody) whether the inability of the custodial parent to care for the child should result in his having custody. The answer, by an overwhelming majority, is YES.
Clearly the father left his wife, the stepmother, in the worst possible position – unarmed against the demands of the child’s mother and without the sailors presence, protection and testimony in a contest with a strong-willed judge who became aware of the absence of the designated custodian. Like virtually all judges, this one probably ruled that there is a constitutional preference for parental custody, when one parent is absent the other is expected to care for the child, and only when one parent is proven to be unfit by virtue of abandonment, abuse, neglect or such other conduct as is inconsistent with parental responsibilities may the court designate custody in a third party.
There are few exceptions to the parental preference doctrine. One of them is consent. If a parent consents to the award of custody, on a permanent or temporary basis, to a third party, then that decision will be binding upon the parent. Another is waiver. If a parent, by his actions or inaction, waives the rights which the parental preference doctrine gives him then he cannot later step into court to demand their protection and enforcement.
The Servicemembers Civil Relief Act (SCRA) provides some protections (such as a stay of proceedings under certain circumstances) for members of the military in civil lawsuits. The Act was passed to protect the rights of those in uniform. But what rights would be protected in this case? The father was given the right, nay, the duty to care for and protect the minor child in the custody order. How can he exercise this right when he is on a submarine in the middle of the ocean? Why would the SCRA be employed to protect rights which he no longer has? Why should the Act be used to keep the child with his new wife, who is not protected by the SCRA, when he cannot care for the child due to military duties? Why would the father try to use the act to defeat the rights of the mother of the child? It’s not even clear that the servicemember-father asked for a stay, since the only reference to this is a statement that the stepmother presented “a letter from a Navy administrative officer to confirm his duty posting.” This is not sufficient ask for a stay; there must be a communication from the sailor’s commanding officer.
Use of the Servicemembers Civil Relief Act in such a custody case is almost universally rejected by the courts. The reason is in a doctrine known as “The Sword and the Shield.” A good example of this equitable rule can be found in a New York military custody case, Diffin v. Towne.4
The SM-mother in that case, as in the Michigan case, also urged the court to find that a stay of proceedings barred the entry of a custody order, even on an interim basis. She said that that her new husband should take care of the child of her former marriage. This case, absent the information (or lack of information) about child protective services, is a close parallel to the newspaper scenario above involving sea duty for the sailor-father.
The mother in Diffin v. Towne, a member of the Army Reserve, had remarried after a divorce from the child’s father about four years previously. She was served in April 2004 with a motion from her ex-husband asking for custody of their child in light of her upcoming mobilization to Fort Drum, New York.
The mother tried to defend against the motion by asking for a stay and pointing out that she had prepared a military Family Care Plan (which is required by military regulations) designating her new husband and her mother as guardians for the child.
In addition she argued that a stay of proceedings (requested under New York statutes that are similar to the SCRA) bar the judge from proceeding with any temporary or permanent relief. Finally, the Reservist-mother claimed that the stability derived from their child’s continued education in the Fort Plain School District was more important in the child’s life than living with the father. The new husband also petitioned for temporary custody.
The court in its opinion reminded the parties that a stay of proceedings is simply intended as a shield to protect SMs, not as a sword with which to deprive others of their rights.5 In the absence of extraordinary circumstances, such as abandonment, unfitness, or persistent neglect, the court must grant custody to the secondary custodial parent in a case such as this when the primary custodian cannot fulfill his or her custodial duties. Finding no such disqualifying circumstances, the court swept aside the mother’s argument that her new husband should take care of the child pending her return from an indefinite mobilization period, stating that:
the step-father has no legal or moral obligation to support the child, has no legal ability to obtain medical care for the child, and has no legal ability to inquire as to the education of the child.6 Here it should be noted that the court in Michigan could, if given the opportunity, hold a hearing on fitness and make a ruling as to the qualifications, ability and fitness of the mother for extended care of the child as the alternate custodian. The problem with this solution, of course, is absence of the best witness for the child, that is, the child’s father. How can the dad argue and testify about the mother’s conduct and ability (or lack thereof) to care for the child when he is in the middle of an ocean? Why did he not anticipate this possibility when the custody order was entered initially?
The New York trial court opinion went on to explain that the court had the power to enter a temporary order pending the final resolution of the matter regardless of the entry of a stay of proceedings because children of military personnel are not only entitled to receive support during their parent’s tours of duty, but . . . they are also entitled to stability with regard to their care, upbringing and custody.7
Finally, the court noted that it was being asked to leave the child with a step-parent until such time as the mother is able to proceed. This is not in the child’s best interest and the law requires this Court to enter a temporary order pending the trial of this action. To fail to provide for the child’s legal physical custody during the pendency of the stay would result in an untenable situation where the child would be living with his step-father, a legal stranger to him, and his natural father’s rights would be subrogated to the step-father. The Court agrees with the father, that the child should be allowed to complete the current school year in New York and then physical custody should be transferred to the father, the available natural parent, until such time that the mother is no longer on active duty in the military or a trial is held on this matter.8
Similar results, granting application of the stay provisions of the SCRA but allowing placement or temporary custody of the child on an interim basis, occurred in In re Marriage of Grantham.9 In that case, the father attempted to give custody through his military Family Care Plan to the child’s paternal grandmother, and the mother obtained temporary custody while the father pursued an appeal that was ultimately unsuccessful. It is not difficult to understand why the court affirmed the trial court’s transfer of custody and upheld its denial of the father’s stay motion. Inequitable conduct by the servicemember-parent, turning the Act’s protective shield into a sword, usually will result in a denial of a stay request, even though there is nothing in the SCRA stating this or even mentioning misconduct by a party. The SCRA is intended to protect the rights of a servicemember. It is hard to argue that a sailor who has been given custody of a child by the court, but who is now absent from his custody duties due to military assignment, still has rights to protect. What are those rights? In virtually every custody order, one parent is granted primary care and custody of the child. This is intended by the court to be exercised in person. Most courts expect that, if a parent is unable or unwilling to fulfill the heavy duties which come with custody, he will give them up and transfer them to the other parent, or else the other parent will ask the court to perform this function.
[The final part of this article will discuss a prescription for avoiding disaster by crafting the court’s custody order with an eye to the future and a plan for who gets custody when the military member is absent.]
Read this series:
*Mr. Sullivan is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina and is the author of The Military Divorce Handbook (Am. Bar Assn., 2nd Ed. 2011) and many internet resources on military family law issues. A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989. He works with attorneys and judges nationwide as a consultant and an expert witness on military divorce issues in drafting military pension division orders. He can be reached at 919-832-8507 and firstname.lastname@example.org.
3See, e.g., Schmalhofer v. Schmalhofer, 2003 Tenn. App. LEXIS, at 7 (case involving Navy mother in which her supervisor testified that someone in the mother’s position “was usually scheduled to work 48 months on shore, then 36 months at sea”).
4Diffin v. Towne, 3 Misc. 3d 1107A (2004) (unpublished).
5Diffin v. Towne, No. 504650, Slip Op. at 2 (2004 N.Y. Misc. LEXIS 622 at 5).
6Diffin v. Towne, No. 504650, Slip Op. at 6 (2004 N.Y. Misc. LEXIS 622 at 17).
7Id. at 20 (citing Gilmore v. Gilmore, 185 Misc. 535, 536, 58 N.Y.S.2d 556, 557 (1945) and Kelley v. Kelley, 38 N.Y.S.2d 344, 348–50 (1942)) (cases providing for family support while rest of matter was stayed).
8Id. at 21.