Losing Child Custody During Military Deployment

By Julie Garrison

Special to DadsDivorce.com

There are thousands of child custody cases in the U.S. involving military dads who have lost custody of their children while on deployment.

During World War II, the Soldiers’ and Sailors’ Civil Relief Act was enacted, which provided protections for Americans serving in all branches of the military.

It gave service members reduced interest rates on mortgage payments and credit cards, protection from eviction under certain scenarios, and delay of all civil court actions, such as bankruptcy, foreclosure or divorce proceedings.

But there was nothing in this legislation that protected fathers rights to custody while they were deployed.

Then came the Servicemembers Civil Relief Act (SCRA) in 2003. This new law was introduced to combat a disturbing trend of military personnel having their child custody agreements altered during deployment resulting in a loss of parenting time.

The primary focus of the SCRA is to ensure that any custody modifications due to deployment are temporary in nature and will expire when the service member parent has returned from his tour of duty.

The language of the law specifies that “custody only reverts to the original order when it is in the best interest of the child, which is the standard upon which all custody determinations are made in the United States.”

But this language had a built-in ambiguity in the definition of a child’s “best interests,” which created confusion in the family law courts. In fact, this is exactly what happened to Elliott.

Case Study:

Elliott was in Marine Corps basic training when his 16-year-old wife, Charlene, a junior in high school, gave birth to their son, Jason.  While Elliott was in basic training, Charlene and Jason lived with Elliott’s mother, Grace, in Topeka, Kan.

Two years later, their marriage fell apart, and Elliott filed for divorce. Charlene signed a parenting plan granting Elliott sole child custody. She also agreed that Jason would live with Grace whenever Elliott was out on deployment.

As soon as Elliott was deployed to Fallujah, Iraq, Charlene filed for residential custody of Jason claiming that she had not fully understood the parenting plan that she had signed.

Elliott participated in fighting a war during the day and a custody battle at night. He rolled a Humvee and was involved in yet another accident explaining he was distracted by his child custody worries back at home.

Elliott’s divorce lawyer sought a stay of the child custody proceedings under the Servicemembers Civil Relief Act, arguing that Elliott had a right to be present to testify.

The judge, however, determined that the case was not subject to federal law because “this court has a continuing obligation to consider what’s in the best interest of the child.”

Charlene was awarded temporary physical custody of Jason, and the order was later made permanent.

Part 2 of this article looked at the widespread injustice facing divorced dads in the military and how the latest legislation and progress at the Pentagon is a movement toward increased military father’s rights.

 

Julie Garrison has been writing articles and short stories for the past 10 years and has appeared in several magazines and e-zines.