Deployments | May Service Member Leave Children with Step-parent?

        I've had several cases this year involving deployed parents who have sought to maintain family continuity for their children during deployments. Spiteful ex-spouses in each case have sought to limit contact between the children and their step-parent and/or the children and the service member's parents.

        Frequently, the inability to be with a step-parent or grandparent will deprive the children of contact with the deployed parent through Skype or even telephone. My patience wears thin when I see mean-spirited parents (usually mothers) refuse to permit the children to keep building memories of the absent parent. In 2007, however, a Colorado appellate court held that a deployed parent had the right to leave the children with his new spouse during his deployment.  According to the court, this isn't much different from a custodial parent leaving the children with a daycare provider, a friend, etc. So long as both parents are fit, the court ruled, each can make day-to-day decisions during his or her allotted parenting time. Wouldn't it be great if other service members in other states could get similar relief from their family courts!

        The case is In re Marriage of DePalma. The mother, Melissa Ann DePalma appealed post-judgment orders permitting the father, P. Jon DePalma to exercise his parenting time rights during his military deployment by having his current wife care for the children in his home during his parenting time.  Two children were involved.

        Father and mother had earlier agreed to a parenting plan that provided for the children to be in father's care two evenings a week and every other weekend and in mother's care at all other times. The plan also provided for a right of first refusal for the care of the children, by which either parent would offer the other parent any parenting time for which he/she was unavailable. This parenting time plan was incorporated into a 2002 divorce decree.

        Father is an airline pilot and an Air Force Reserve pilot. Before he remarried in 2004, he and mother coordinated their parenting time each month to take his schedule into account. When he was deployed by the Air Force, mother exercised all parenting time.

        After father remarried, he was again deployed to Iraq. During this deployment, the children spent one night and one evening per week in the care of father's new wife (stepmother). The remainder of the parenting time was exercised by mother. In January 2006, father was to be deployed again. He asked that parental responsibilities be modified to allow the children to spend equal time with each parent and also that this parenting time schedule remain in effect when he was stationed in Iraq. Father maintained that it would be in the children's best interests for them to maintain their normal schedule and their bonded relationship with stepmother and their stepbrother.

        Mother opposed this motion. She argued that the court could not permit father to establish parental rights for his new wife that the new wife was not entitled to obtain in her own right. Mother also argued and she should not be required to decrease her parenting time in favor of a non-parent.

        The trial court heard evidence in April and May of 2006. After considering the parties' arguments, the court determined the following:

• the presumption that a natural parent has the right to control the upbringing of a child is rebuttable;
• the best interests of the children must be considered in determining whether the presumption has been rebutted; and
• in the case before the court, the court was required to consider the relationship between the children and the stepparent as well as father's rights.

        The trial court then held a best interest hearing in June 2006, hearing testimony of both parents, the stepmother, and the child and family investigator. The court decided that father could decide to have stepmother care for the children during his parenting time and that in doing so, he was presumed to be acting in the best interests of the children. The court further found that allowing father to designate stepmother as the children's caregiver during his absence did not modify the parties' parenting plan, as the children would remain in mother's care at all times except during father's parenting time. Further, this arrangement did not grant parenting time to stepmother. The court concluded that the right of first refusal set forth in the parenting plan did not require that father offer the children to mother while he was deployed, and that imposing such a requirement would interfere with father's parenting time. Upon these findings, the court ordered that the children should be in the care of stepmother during father's parenting time as he had requested.

      The DePalma appellate court said that the trial court expressly recognized that a parent has "a presumptive right to control the upbringing of a child," and that there is a presumption that a natural parent can make the decisions concerning the children. The court ultimately concluded that father could make the decision to have stepmother care for the children during his parenting time, noting that because parental unfitness had not been alleged, father was presumed to act in the best interests of the children. Because both parents were fit, the appellate court was not persuaded that the trial court failed to accord mother the benefit of the presumptions to which she was entitled as one of the children's biological parents.

        The Colorado Court of Appeals said:

The trial court treated this matter as a dispute between two fit parents regarding the arrangements for the care of the children during father's parenting time, rather than a dispute between a non-parent seeking parenting time and a parent opposing it. We are not persuaded that the court erred in doing so. Stepmother never requested parenting time in her own right, and we are aware of no authority for the proposition that a parent's request that a stepparent or other non-parent be permitted to provide care for a child should be imputed to the non-parent and treated as a request by the non-parent for parenting time.

Because the dispute was between mother and father, and not between mother and stepmother, the presumption that a parent has a "first and prior" right to the custody of his or her child was not implicated, and there was no need for the court to comment upon the presumption that a parent's right to custody is superior to that of a non-parent.

Because the dispute was between mother and father, the court did not err in according the presumption that a fit parent acts in the best interests of the children to father as well as to mother. As the courts of several other jurisdictions have found, when two fit parents disagree, the court must weigh the wishes of both to determine what is in the child's best interests. [Citations omitted]

You may read In re Marriage of DePalma, 176 P.3d 829 (Colo. App., 2007) (Cert den 2008) here.

        See also In re Marriage of Sullivan, 342 Ill.App.3d 560, 565, 277 Ill.Dec. 25, 795 N.E.2d 392, 396-97 (2003) (a dispute between mother and father regarding father's petition modify his parenting time to allow his parents to visit child while he was on military duty overseas requires the court to weigh the wishes of two fit parents to determine the child's best interests).

        Thanks to John Kirchner, family lawyer in Colorado Springs, CO for bringing these cases to my attention.

Need help with a custody or parenting time modification after deployment?

Comments

[Jeanne M. Hannah]

Slippery slope indeed. Ever since the U.S. Supreme Court decided Troxel v Granville, 530 U.S. 57 (2000), rights of visitation or custody for third parties (anyone other than a biological parent) are limited to those created by statute. Statutory rights for grandparents are quite limited. Should we create rights for a live-in BF or GF? I don't think so. There is always that issue of "permanency." Will that relationship last?

However, where the service member is leaving a step-mom or step-dad behind upon being deployed, especially if there are step-siblings from whom the child or children would be separated, I believe that a court should be willing to look at the issue of whether the deployed party should be able to designate his custodial or parenting time rights to his/her spouse.

When something gets in the way of that . . . it's usually the green-eyed monster (jealousy)or the issue of money . . . IMHO.

[Andrea Isrow]

Ah, the slippery slope. What happens when it's not a remarriage but a live-in relationship? How 'bout a roommate? I am the step-mom in a relationship just like this one, and even so, as a lawyer it causes me a twinge of concern. Guess there's just a "wait and see" here.

[Tiffany]

My husband has full custody of his 13-year son and has had full custody since his divorce in 1998. With the events of 9/11, he was activated for military service at the air force base in Mt. Clemens, Michigan, working the third shift. During this time he had his son enrolled in daycare, but the cost was prohibitive, and through mutal agreement (not court order or a modification of the original custody documents), he moved his son into the biological mother's care, where he has been for the last 8 years, and paid her an agreed upon amount every month (again, not by court order but by mutal agreement).

Since he began living with his mom, either my husband or I have made arrangements to pick up his son and he comes for a visit every other weekend, provided his mom's schedule and his extracircular activity schedule provide for it. My husband pays for his extracircular activites, school clothes, supplies, etc. And, he provides extra money whenever he is asked.

After the first deployment ended my husband did not want to move the child away from the school he was going to and his stepsisters, so he continued to live with his mother.

My husband deployed again in 2008 and his son stayed with his mother while I visited him approximately twice a month, driving over 100 miles one way to see him and make sure he was okay during the deployment. However, over the last couple of years his sons grades have fallen and he's not reaching a level of maturity that is equivalent to his age. And, his son has recently expressed an interest in moving back with his father and me (his stepmom). Unfortunately, my husand recently deployed and now the mother does not want the child living with me because I am not a biological parent.

We've have been talking to the son about coming to live with us is due to the fact that his grades are extremely poor - D's and E's, and have been that way for the last two to three years - and I would be able to provide him with a greater amount of attention while his father is deployed, and he would have more opportunities to speak with his father during the deployment.

Given that custody of the child has never changed, but the mother does not want to willingly let the child live in his father's home during the deployment, do I have any recourse whatsoever? Other than poor grades and his lack of maturity and his lack of social adeptness, I do not think the boy's mother is unfit, just not giving him the one-on-one attention he needs and, I believe, craves.