Question: My cousin is a Marine. He got married and shortly after they learned she was pregnant. He had to leave for military reasons for a few months. While he was gone she told him she had an abortion and that she wanted a divorce. A few weeks later, her new boyfriend called my cousin and said that he thought he should know that it is a boy so apparently she didn’t have an abortion.
My cousin has always wanted a child and can support the baby and has people who can care for his son if he has to go back to Iraq but he can’t even prove that she is still pregnant since she refuses to talk to him or see him. We are afraid that even though she is too far along she would try to abort the baby now just to hurt him.
What can he do to prove she is an unfit mother, protect his unborn baby and get sole custody? This is harder since he may be deployed overseas before her due date.
So long as your cousin is in the military overseas, it will be very difficult to obtain sole physical custody of his child. This is because, in most states, the family courts award custody to the party in the child’s established custodial environment. Of course, there are always exceptions – if the home is abusive, if the home is new, if the overseas home is stable, etc.– but, based on the information you have provided, that does not appear to be the case.
If he can avoid a custody case until his return and/or he is able to provide an established environment, his chances of obtaining sole or even equal physical custody increase. In the meantime, family counseling can be beneficial. He may find no- or low-cost counseling services based on r income or as a benefit of his active military status.
If a custody case is inevitable, here are a few things to keep in mind:
(1) State and county departments of human services investigate allegations of child abuse and neglect. These include pre-birth allegations. Your cousin and any witnesses with first hand knowledge of abuse or neglect should report to the local department as soon as possible. The department will document the allegations, investigate and provide appropriate services, which may include legal action.
(2) In general, the standard to apply for any custody decision is the “best interests of the child” standard. State statutes and case law define this standard differently, but there are certain factors and/or themes that appear in the majority of states. For example, in Michigan, where I practice, family courts must consider the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence . . . of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant
You will find the same or similar factors in most states.
One common factor is the “environment” factor. Courts strive for stability for children; that is, they rarely render custody decisions that remove children from established custodial environments. The parent residing in the environment usually receives more custodial time. If the parents are equal on all other factors, a court may favor the home state environment to an active military environment overseas. An experienced family law attorney will know how to advocate on your cousin’s.
(3) Your cousin may seek a stay of certain family law cases filed against him while he is in active duty overseas under the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA). The SSCRA protects defendants from certain civil judgments and liabilities, including custody cases, during periods of active duty. Among other things, the SSCRA requires creditors to cap interest rates, tolls statutes of limitations for certain legal actions, and protects from eviction and repossession. To take advantage of the SSCRA, the active service member must notify the court, usually in the first responsive pleading or as soon thereafter as possible, of active status and request a stay of proceedings under the SSCRA. An experienced attorney in your area will know how to request this relief on your cousin’s behalf
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in your cousin’s home state, South Carolina. You and your cousin should not rely on this answer as establishing an attorney-client relationship, and you and your cousin should contact an attorney in your area for additional information and legal representation. Thank you for submitting a question to Cordell & Cordell, P.C.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.