When the Iraq war began two years ago, tens of thousands of fathers who
serve in the Armed Forces expected hardship and sacrifice. However, they never
expected that their children might be taken from them while they were deployed,
or that their own government might jail them upon their return.
Military service sometimes costs men their children. The Uniform Child
Custody Jurisdiction and Enforcement Act provides that if a parent moves a child
to a new state, that new state becomes the child's presumptive residence after
six months. With the long deployments necessitated by the war, a military spouse
can move to another state while her spouse is deployed, divorce him, and then be
virtually certain to gain custody through the divorce proceedings in the new
Given service personnel’s
limited ability to travel, the high cost of legal representation and travel, and
the financial hardships created by child support and spousal support
obligations, it is extremely difficult for fathers to fight for their parental
rights in the new state. For many, their participation and meaningful role in
their children’s lives ends—often permanently--the day they were deployed.
In one highly-publicized
case, Gary S., a San Diego-based US Navy SEAL, had his child permanently moved
from California to the Middle East against his will while he was deployed in
Afghanistan after the September 11 terrorist attacks. The 18-year Navy veteran
with an unblemished military record has seen his son only three times since he
returned from Afghanistan in April, 2002. Meanwhile he is nearly bankrupt from
child support, spousal support, travel costs, and legal fees.
To solve the problem, the
federal government must amend the Servicemembers Civil Relief Act of 2003 (SCRA)
(formerly known as the Soldiers' and Sailors' Civil Relief Act) to specifically
prohibit the spouses of active duty military personnel from permanently moving
children to another state without the permission of the active duty military
spouse or of a court. In addition, the UCCJEA needs to be modified to state that
the presumption of new residence does not apply if the children are taken in
this wrongful fashion.
Also, states must do more to
prevent custodial parents from moving children out of the lives of noncustodial
parents, except in cases of abuse or dire economic need. For example, last year
the California Supreme Court decided in LaMusga that courts should
restrain moves that harm children by damaging the loving bonds they share with
their noncustodial parents.
While some military fathers face the loss of
their children, others face prosecution and jail
for child support obligations which their
service has rendered them unable to pay.
Support orders are based on civilian pay, which
is generally higher than active duty pay. When
reservists are called up to active duty they
sometimes pay an impossibly high percentage of
their income in child support.
For example, a California naval reservist who
has three children and who takes home $4,000 a
month in his civilian job would have a child
support obligation of about $1,600 a month. If
this father is a petty officer second class (E5)
who has been in the reserves for six or seven
years--a middle-ranked reservist--his
active-duty pay would only be $2,205 before
taxes, in addition to a housing allowance.
Under current California child support
guidelines, the reservist’s child support
obligation should be $550 a month, not $1,600.
A reasonable reader unfamiliar with the wonders
of the child support system would probably think “OK, but the courts would just
straighten it out when the reservist gets back—certainly they wouldn’t punish
him for something that happened because he was serving.” However, the federal
Bradley Amendment prohibits judges from retroactively modifying child support
beyond the date which an obligor has applied for a modification. Reservists can
be mobilized with as little as one day’s notice. If a reservist didn’t have time
or didn’t know he had to file for a downward modification, the arrearages stay,
along with the interest and penalties charged on them.
When the arrearage reaches $5,000—a common
occurrence during long deployments—the father can become a felon who can be
incarcerated or subject to a barrage of harsh civil penalties, including seizure
of driver's licenses,
business licenses and passports.
In addition, reservists who
return from long-deployments often find that their civilian earning capacity is
now diminished. This is particularly true for the 6% of reservists who are
self-employed, and whose businesses are often destroyed by their absence. Family
law courts are notoriously unforgiving of fathers who suffer wage drops. Many if
not most will have their former incomes imputed to them, meaning that their
child support will not change despite their drop in income. Saddled with
mounting arrearages, some reservists will return to fight a long battle to stay
out of jail.
Some reservists have their
child support deducted automatically from their pay. Once deployed these
fathers may lose 60% or 70% of their income and incur huge debts or face home
To date Missouri is the only
state to adequately address the issue. During the first Gulf War it passed a law
requiring that reservists’ support obligations be automatically modified when
they are called up for active duty. Other states, including California and
Illinois, are currently considering legislation that would help reservists.
However, tens of thousands of reservists were deployed before they could file
for downward modifications. Only a repeal of the Bradley
amendment—already widely seen as bad law within family law circles—can prevent
them from facing years of debt, harassment, legal woes or even incarceration
upon their return from active service.
Like many veterans, Gary
says he was very naïve about the troubles military fathers face in family law.
“The failure of our leaders in Washington to
protect military fathers is a national
disgrace,” he says. “Reservist fathers shouldn’t
be turned into deadbeats. And no father should
ever, ever lose his son or daughter simply
because he served his country.”
This column was first published in the Army Times and Marine Corps
Jeffery M. Leving is one of America's most
prominent family law attorneys. He is the author
of the book
Fathers' Rights: Hard-hitting and Fair Advice
for Every Father Involved in a Custody Dispute.
His website is
Sacks' columns on men's and fathers' issues have appeared in dozens of America's
largest newspapers. Glenn can be reached via his website at
via email at Glenn@GlennSacks.com.