Protect Deployed Parents’ Rights

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."

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.