Thursday, February 14, 2008

Military Deployment Often Means Loss of Custody to the Other Parent Back Home

This morning I just heard, on National Public Radio's Morning Edition, the following feature story about a female soldier who lost custody of her child after she was deployed to Iraq: NPR, Morning Edition, February 14, 2008: "Soldier Loses Custody of Child After Iraq Tour". The story discusses the vulnerability of deployed military men and women, especially during a time of war, when they happen to be caught up in custody battles back at home, either in divorce or other family law proceedings, as the courts tend to favor the parent who has stayed behind.

This story is really just sort of a variation on a common theme in family court. There is usually a strong custody presumption or assumption, whether stated or not, in favor of the parent who is currently most available to the children, and with whom the children already primarily reside, or can most easily reside, on a regular, and stable basis. In other words, at the huge risk of oversimplifying, possession is nine-tenths of the law. (And here I use an old common law adage, which may in fact be more apt now in family law than in property law, and particularly so long as we continue to use property-based language such as "custody" in our family law).


"Advocates for military families say a growing number of soldiers are losing custody of their children, not because they're bad parents but because they've been deployed overseas to Iraq and Afghanistan.

A bill signed by President Bush last month strengthens protections for service members and their families. But legal experts say some military moms and dads are still vulnerable....


Pentagon officials and military-family support groups say there are no statistics on the number of military parents who have lost custody of their children following deployments.

But they agree that the number is increasing, sending waves of anger and fear through the military.

The Army Times newspaper published a scathing editorial on the subject last month, written by managing editor Chuck Finch.

'We have a volunteer military, and the idea of volunteering to serve your country and then facing the prospect of losing your children — it's a little mind-boggling,' Finch says.

In January, President Bush signed a bill that included new language designed to strengthen protections for military parents in custody cases.

Now, custody cases must be delayed for at least 90 days during overseas deployments. The bill also requires that attorneys be appointed to represent military parents in such cases.

But Greg Rinckey, a former Army attorney who specializes in military law, says judges are still free to rule that lengthy and repeated deployments have disrupted a soldier's home life to such a degree that a child's custody should be altered.

'In my experience in the JAG corps, I can say that this happens hundreds of times across the nation, if not even more,' Rinckey says.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

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