Protect Deployed Parents’ Rights

By Jeffery M. Leving and Glenn Sacks

Divorced or separated military parents often lose custody of their children–and sometimes permanently forfeit any meaningful role in their lives–simply because they have served their country. Many married parents deploy overseas, never suspecting that their parenthood essentially ended the day they left home.

The divorce rate in the Armed Forces has skyrocketed during the long deployments necessitated by the conflicts in Iraq and Afghanistan. The scenario is a common one–a marriage crumbles during a long separation, and the stateside military spouse moves to another state and files for divorce, knowing that he or she is 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 the deployed parent to fight for his or her parental rights in the new state.

For example, in one highly-publicized California case, Gary S., a San Diego-based US Navy SEAL, was deployed to Afghanistan after the September 11 terrorist attacks, and served in the Tora Bora region as US forces attacked Taliban and Al Qaeda strongholds. While away, Gary’s little son was permanently moved out of the country, with the complicity of a California family court. The 19-year Navy veteran with an unblemished military record has seen his son only a few times since he returned from Afghanistan, and has been pushed near bankruptcy by legal fees and stiff child and spousal support obligations.

In other cases, the children are not relocated but deployed servicemembers permanently lose custody because they "abandoned" their children by serving. In one widely-reported Michigan case, National Guardsman Joe McNeilly of Grand Ledge lost custody of his 10-year-old son after serving in Iraq for 15 months. Before deploying, McNeilly agreed to cede temporary full custody to his son’s mother. Upon his return, however, the court refused to restore the shared custody arrangement McNeilly and his son enjoyed before his deployment, citing McNeilly’s absence.

In the recent Mercer County, New Jersey case Grother v. Keenan, lieutenant Scott Keenan, an intelligence officer in the Naval Reserves, deployed overseas for three weeks around September 11 as part of the government’s extra security measures. Because of his deployment, Keenan wasn’t able to exercise all of his allotted parenting time with his elementary school-age boys. Ignoring Keenan’s special circumstances, Superior Court Judge F. Lee Forrester permanently reduced his parenting time by 20%.

Because more women are serving in the Armed Forces, this problem is no longer limited to military fathers. For example, in the Regina Ellis case, KMBC TV in Kansas City reports that Ellis lost custody of her son to her ex-husband after she spent a year serving in Iraq, and can now only see her son every other weekend.

Five years after the United States began major foreign military commitments, only a handful of states have acted to protect the rights of military parents, and the federal government has abdicated its responsibility to protect those who serve.

The Servicemembers Civil Relief Act of 2003–the successor to the Soldiers’ and Sailors’ Civil Relief Act of 1940 and other legislation which dates all the way back to the Civil War–protects active military personnel by mandating that civil actions against them be delayed until after their return from service. However, partly because this type of relief began before the era of widespread divorce and out-of-wedlock births, it was not widely perceived to pertain to family law proceedings. As a result, many judges don’t apply the protections the SCRA affords.

The federal government needs to update the Act to specifically apply to family courts. This will ensure that courts stay any long range legal action until after the servicemember has returned from deployment and has had a fair opportunity to assert his or her parental rights. The SCRA update must also specifically prohibit children from being permanently relocated long distances.

Some progress is being made. Widespread sympathy for McNeilly led to a bill signed by Michigan Governor Jennifer Granholm in December which prevents changes of custody while a military service member is deployed, and prohibits family courts from using servicemembers’ service against them when determining custody. Outrage over Gary S.’s case led to a California military parents’ bill which Governor Schwarzenegger signed into law last September.

Gary says that he and others he serves with have been shocked by how little has been done to protect military parents. He says:

"Washington’s indifference to this situation is disgraceful. No parent should ever be pushed out of his child’s life because he served his country."