Should a Service Member be penalized as part of a Custody Evaluation?

CW2 Private RallyPoint Member — Tue, 09 Jun 2015 17:39:09 -0400

I recently received a Custody Evaluation that implied that my duty as a member of the Army Reserve caused me to be away too often. Yes, compared to some civilians, a Service Member does get called away from home. What about pilots, district managers, regional sales staff? Don't they spend time away from their family? Shouldn't the concern be a balance of the quality of interaction as much as the quantity? Should a Service Member be automatically given a mark against their ability to care for their child (ren) simply because they serve their country? What are your thought?

Response by COL Jason Smallfield, PMP, CFM, CM made Jun 9 at 2015 5:47 PM

COL Jason Smallfield, PMP, CFM, CM — Tue, 09 Jun 2015 17:47:13 -0400

- 99% of Americans (literal percentage, not a made up percentage) have never served in the US Military and therefore have no clue what military service entails.
- The truth changes over time. Military service from 2003-2011 is different from military service in 2015 in terms of optempo, risk, and "time away from home". Plus this involves a general predictive statement versus a specific actual statement.
- As CW2 Grego points out, there are other professions that involve as much or more time away from home that are not similarly penalized as part of a custody evaluation.
- Holding military service against a service member as part of a custody evaluation therefore does not make logical, comparative or moral sense. I am not arguing for a lesser standard for military personnel when it comes to custody evaluations but there should be the same standard applied to all.

Response by LTC Private RallyPoint Member made Jun 9 at 2015 5:48 PM

LTC Private RallyPoint Member — Tue, 09 Jun 2015 17:48:24 -0400

Sounds like ex-wife anger, no offense intended. Hope all goes well for you. You have talked to a JAG, I hope.

Response by CDR Private RallyPoint Member made Jun 9 at 2015 5:49 PM

CDR Private RallyPoint Member — Tue, 09 Jun 2015 17:49:33 -0400

CW2 Private RallyPoint Member, It's a sad fact of life, but yet another one that can be chalked up to some of the sacrifices we make. When courts look at custody agreements, they [should] have one thing in mind, and that is the welfare of the child. Our service, as honorable as it is, may not always be in a child's best interest...even if there is no custody at stake.

Response by Sgt Aaron Kennedy, MS made Jun 9 at 2015 6:00 PM

Sgt Aaron Kennedy, MS — Tue, 09 Jun 2015 18:00:10 -0400

"Too often" is a Subjective statement, vice an Objective statement. Had the statement said Military service required you to be away X/days over a 2 year period from 2013-2015, that would be Objective.

Depending on the source of the statement, you should be able to dispute it, and ask for something more Objective in nature, rather than an implication. Request that hard data be included, including things like change of commands, which would reduce operations tempos, etc.

It's easy to come to false conclusions when only looking at a very narrow piece of information, or a misleading statement such as "too often" especially when speaking of Reserve Obligation.

Response by Capt Mark Strobl made Jun 9 at 2015 6:01 PM

Capt Mark Strobl — Tue, 09 Jun 2015 18:01:36 -0400

I'm saying this a little tongue-in-cheek. But based upon your short assessment, you may want to hire a better lawyer when your case goes through its review. In general and in specific regard to deployment(s), the courts do not look upon military members in the same light as civilians.

Response by PO1 John Miller made Jun 9 at 2015 6:03 PM

PO1 John Miller — Tue, 09 Jun 2015 18:03:31 -0400

I think it's a bunch of horse manure that service members, who are often better providers than the spouse they're divorcing, are penalized for serving their country.

Even though from what I've heard a person's service isn't supposed to be held against them, it is.

Response by SSG Private RallyPoint Member made Jun 9 at 2015 6:10 PM

SSG Private RallyPoint Member — Tue, 09 Jun 2015 18:10:21 -0400

There *was* a law working it's way through the national legislature that would have made penalizing service member against federal law...guys it either failed to pass, or died in committee.

Response by PFC Private RallyPoint Member made Jun 9 at 2015 6:10 PM

PFC Private RallyPoint Member — Tue, 09 Jun 2015 18:10:29 -0400

The time away from home most civilians does not equate the potential time away from home for a service member. On the grounds of reliable time home to take care of a child, anyone in the service can't argue that the civilian personnel you mentioned will be away from home for a single continuous block of time longer than the typical service member even if their cumulative time away from home may exceed yours. In the eyes of social services and custody courts, a parent away from home 6 months of the year straight is the lesser evil of a parent who is only home two days of the week.

Response by SFC Private RallyPoint Member made Jun 9 at 2015 6:18 PM

SFC Private RallyPoint Member — Tue, 09 Jun 2015 18:18:21 -0400

They shouldn't, but that's ammunition for the other side. Don't lie, you'd do the same thing if the shoe was on the other foot.

Response by CPT Pedro Meza made Jun 9 at 2015 6:51 PM

CPT Pedro Meza — Tue, 09 Jun 2015 18:51:52 -0400

As a divorced father, when I battle wife #1, she used that against me and lets face it in custody court it is all about being around.

Response by MAJ James Woods made Jun 9 at 2015 7:20 PM

MAJ James Woods — Tue, 09 Jun 2015 19:20:57 -0400

I think many of the courts, lawyers and judges have dealt with the military that they tend to be a little bias these days. But with deployments tamping down hopefully they begin to be more objective for military parents (moms and dads). My divorce lawyer even admitted the State love the ease of military related cases when it comes to child support and custody battles. The non military parent seems to get the benefit unless they have a criminal record.

Response by SFC Private RallyPoint Member made Jun 9 at 2015 7:25 PM

SFC Private RallyPoint Member — Tue, 09 Jun 2015 19:25:02 -0400

On the contrary, it should be an automatic plus! Not because service to your nation, but because you have the means to constantly ensure the child is casted for and have no ties to the misfortunes of the economy. This is what the family care plans are for.

Response by CPL Jay Freeman made Jun 9 at 2015 7:30 PM

CPL Jay Freeman — Tue, 09 Jun 2015 19:30:17 -0400

I feel for you. I lost with my child we went for a custody battle she had been arrested for assulting 4 security forces officers one of the being my Sargent and they gave her custody because I was in the army and going to deploy then slapped me with supervised visits because he was young and I was leaving to Iraq for a yr. My ex his mom didn't like me for a few reasons and made the visits supper sucky as I had just got back and was dealing with so much it was horrible anyways yes they can and do and isn't great my other Sargent had proof his ex was on drugs and the courts said yes she is but she will never go to war.

Response by PO3 Sherry Thornburg made Jun 9 at 2015 7:35 PM

PO3 Sherry Thornburg — Tue, 09 Jun 2015 19:35:09 -0400

Don't know your situation, but as a single parent after divorce, you would have to have a guardian for your kids on file should you be called up. Some judges know this and know if you are called up you may be away for a lot more than a weekend a month. So your ability to parent could be hindered or severely reduced due to the needs of the service. That makes it hard for some judges to consider giving full custody to a service member. My husband was given very liberal visitation rights anytime he was in state and able to visit, but no way he was going to get full custody from the State of California as a single sailor. Yeah, the cards are stacked against you.

Response by MAJ Robert (Bob) Petrarca made Jun 9 at 2015 7:43 PM

MAJ Robert (Bob) Petrarca — Tue, 09 Jun 2015 19:43:54 -0400

It doesn't seem fair to compare potential away time due to deployments and schools in that light, its part of the job. Besides, you have an appropriate family care plan on file to mitigate that aspect of military life.

Response by SGM Erik Marquez made Jun 9 at 2015 7:59 PM

SGM Erik Marquez — Tue, 09 Jun 2015 19:59:44 -0400

Should, would, could are all opinion based.. in the end, it is the Judges opinion that means the most.
My wife lost her (our) 3 year old son to her Ex (who really only wanted the little one to be an ass)
My son ( I am his father, though not his dad.) was awarded to the Ex by a Pennsylvania judge that felt a woman had no business in the Military, and if she chose that lifestyle, it was that over her child which she no longer cared for (according to him)
Our Son lasted 1.5 years with his Biological father at which point he asked to come back and live with us.. A new judge heard our case, found no fault in my or my wifes profession, and lots of fault with the lack of work, failure to care for the boy by the Ex, and gave us back full custody.

Same state, same lawyer on our part, different judge and the outcome was 180 deg different.

Response by CW5 Private RallyPoint Member made Jun 10 at 2015 8:24 AM

CW5 Private RallyPoint Member — Wed, 10 Jun 2015 08:24:01 -0400

I would believe that a good argument for the defense is the family care plan that you establish while serving. Yes, you acknowledge that the other parent is part of that support plan but that should have no bearing on your ability to care for your child(ren) while away. The other side's argument is that they will take full time because you can't be depended on. That doesn't hold water as the only real problem is that the other parent is put-out/inconvenienced by having to adjust their plans should you get orders to deploy in 90 days. If they want full time then they need to prove you are an unfit parent.

With the exception of the way the 2007-8 surge was handled, we know within a few weeks how long our tours will be and we don't go flying off within 8 hours of the balloon going up. If you are part of a reserve unit that does that then it is self-inflicted pain. If you are part of an AD unit that does this, plan the custody around your alert status. If your unit is that kind of unit 24 hours with no cycle then you need to PCS for your child.

There is nothing not in the best child's interest with you being in the military that cannot be worked out if both sides are willing to put up effort (you bring the child to them or vice/versa, etc)

Response by SGT Private RallyPoint Member made Jun 10 at 2015 4:48 PM

SGT Private RallyPoint Member — Wed, 10 Jun 2015 16:48:29 -0400

HR 4469 Amendment to the service member civil relief act, if they even have the fact that you being a soldier affects your ability to father your children take it to a higher court. In no way should a service member be penalized for providing for their family and country.

Response by TSgt Joshua Copeland made Jun 10 at 2015 6:00 PM

TSgt Joshua Copeland — Wed, 10 Jun 2015 18:00:49 -0400

Should it? No? Does it? Far too often? Judges often are going to look to place place a child with a parent who will offer the least amount of disruption. Yes service members deploy and have to have a family care plan which would cover the care of the child. The judge would consider this but would also see it as disruptive when placing the with the non-military parent provides a stability that the military parent simply cannot provide. I am not saying this is true or right. Just how judges often view it.

Response by CPT Private RallyPoint Member made Jun 10 at 2015 6:06 PM

CPT Private RallyPoint Member — Wed, 10 Jun 2015 18:06:19 -0400

I'm pretty sure that the Soldiers and Sailors Relief Act speaks directly to this. You can't be penalized for serving in the military and you have some legal protections as a service member under the Act. Get a good lawyer. I'd tell you that whether you were in the military or not. Custody is one of those things you can't skimp on.

Response by TSgt Private RallyPoint Member made Jun 10 at 2015 9:09 PM

TSgt Private RallyPoint Member — Wed, 10 Jun 2015 21:09:00 -0400

Wow, two of my troops are facing the same issue now. I will be sure to inform them about this. Thanks for sharing.

Response by CSM Private RallyPoint Member made Jun 11 at 2015 12:31 PM

CSM Private RallyPoint Member — Thu, 11 Jun 2015 12:31:57 -0400

If only the court would accept a family care plan.

Response by MSgt Private RallyPoint Member made Jun 12 at 2015 12:28 PM

MSgt Private RallyPoint Member — Fri, 12 Jun 2015 12:28:05 -0400

This is when a Family Care Plan would come into play. Sure, you might be away, but it shows you are always trying to think about your child(ren)'s well being. I think anyone that would use military service against you is truly a sad person and they should have never been parents in the firt place. Chief, This is a petty way of trying to hurt someone.

Response by SPC David Hannaman made Jun 25 at 2015 4:45 PM

SPC David Hannaman — Thu, 25 Jun 2015 16:45:08 -0400

My wife sat on a custody jury. The case had the twist that the mother was in the military and the father was seeking custody. The father won because he demonstrated that during the separation he was the primary care giver.

That was the exception though, not the rule. Here in Texas 90% of the time custody goes to the mother, the other 10% being due to mitigating circumstances such as incarceration, chemical dependency, etc. It's an uphill, expensive battle for a father, the unfortunate public perception is that fathers are optional, just "sources of child support".

My opinion is that the emotional development of children is highly dependent on having both male and female role models, and that society (especially young men) are paying the price of taking the male role model so lightly.

Response by SGT Scott Bell made Aug 29 at 2015 8:10 PM

SGT Scott Bell — Sat, 29 Aug 2015 20:10:50 -0400

Response by SGT Scott Bell made Sep 4 at 2015 7:22 AM

SGT Scott Bell — Fri, 04 Sep 2015 07:22:08 -0400