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 family law attorney Jeffery Leving, 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?"
The first legislative success on this issue came after California state Senator Bill Morrow (R-Oceanside) read this column. Working with legislative advocate Michael Robinson, Morrow and Senator Denise Moreno Ducheny (D-San Diego) sponsored SB 1082, which addressed the way parents who serve are often taken advantage of in custody and family law matters while they are deployed, and helped resolve the child support nightmare many mobilized reservists face. SB 1082 was signed into law by then-Governor Schwarzenegger in 2005, and since then many states have passed bills modeled in part on it.
- Los Angeles Daily News5/4/03