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When Gary, a San Diego-based US Navy SEAL, was deployed in
Afghanistan in the wake of the terrorist attacks on the
World Trade Center, he never dreamed that his service to his
country would cost him his little son. Gary's son was not
taken from him by a terrorist or a kidnapper. This 17-year
Navy veteran with an unblemished military and civilian
record was effectively stripped of his right to be a father by a
California court.
Gary's story is not an unusual one. Under the Uniform Child Custody Jurisdiction
and Enforcement Act, if a parent takes a child to a new
state, that new state becomes the child's presumptive
residence after six months. Because a normal military
deployment is six months or more, if an unhappily married
military spouse moves to another state while the other
spouse is deployed, by the time the deployed spouse returns
the child's residence has already been switched. Since
courts lean heavily in favor of a child's primary caregiver
when determining custody, the spouse who moved the child is
virtually certain to gain custody through the divorce
proceedings in that new state.
Because of the strict restrictions on travel by active
military personnel, the cost of legal representation, and
the financial hardships created by child support and spousal
support obligations, it is very difficult for returning
service personnel to fight for their parental rights in
another state. Many struggle even to see their children,
much less remain a meaningful part of their lives, and the
bond between the children and their noncustodial parent is
often broken for years, if not permanently.
Gary has not been able to see his son, who now lives abroad,
in nearly nine months. When he calls he can sometimes hear
the three year-old ask "when daddy come?" and "where's
daddy?" in the background but he is often prevented from
speaking with him.
According to nationally-known family law attorney Jeffery
Leving, author of Fathers' Rights , there are three
solutions to the problems facing military fathers. First,
the federal Soldiers' and Sailors' Civil Relief Act of 1940
needs to be amended to specifically prohibit the spouses of
active duty military personnel from permanently moving
children to other states without the permission either of
the active duty military spouse or of a court. (The primary
purpose of the Act, whose origins go back as far as the
Civil War, is to protect active armed forces personnel by
mandating that civil actions against them be delayed until
after their return from service).
Second, California laws, which currently do little to
prevent a custodial parent from moving children far away
from the noncustodial parent, need to be changed to prohibit
any permanent removals done against a deployed military
parent's will. Third, the UCCJEA needs to be amended to
state that the presumption of new residence does not apply
if the children are taken in this wrongful fashion.
Gary has lost nearly $100,000 so far fighting for his son
and may soon be forced to declare bankruptcy, which in turn
will destroy the top secret security clearance he needs for
his job. Worse yet is the emotional devastation wrought by
his separation from his son and the knowledge that he may
never see him again. He says:
"My love for my son cannot simply be brushed aside as the
courts seem to believe it can. I can remember holding my
little son's hand like it was yesterday. I can remember his
cry. I hear it every time I hear another child crying."
"Sometimes I wonder what I risked my life [in Afghanistan]
for. I went to fight for freedom but what freedom and what
rights mean anything if a man doesn't have the right to be a
father to his own child?"
This column first appeared in the Los Angeles Daily
News (5/4/03).
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