Laws Must Protect the Rights of Military Dads

By Jeffery M. Leving and Glenn Sacks

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 state.

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 foreclosures.

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 naive 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."

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