National Guardsman Loses Child Custody Due to Deployment
by Gary Port /
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January 12, 2008
Note: This post pre-dated Albany’s uncharacteristic quick action. After this decision was rendered, there was such a firestorm, that Albany put in a quick fix. It is not perfect, but the fix prevents judges from making permanent changes in custody based during a military deployment. More work needs to be done. But this is a start.
Note Two: The change in the law doesn’t lessen my feelings about the below decision.
Regular readers know I that don’t slam or criticize judges, I merely explain the law. Well that changes with this posting. I am furious at a decision by a panel of appellate judges in Albany who rubber stamped an ill-advised decision to penalize a mother for the crime of being a patriotic American. The case, Diffin v. Diffin involves a mother who got custody of her son as part of a divorce settlement in 2000. On April 2004, the mother got mobilized and went to Iraq.
The father moved for a change in custody, and the mother plead the Servicemembers Civil Relief Act. The Family Court stayed the action, but granted temporary custody to the father until the mother returned from Iraq.
When the mother returned, the Family Court awarded custody to the father. The appellate division, third department affirmed the decision. The reason was that because her military service, she has a less settled life. Therefore, it was in the best interests of the child to change custody to the father.
The Court tried to claim that the military service had no impact on the decision, but then they go on to find that her military service was the primary factor. To put a fig leaf on the decision, they talk about how in the past year the child is in a stable environment and that it would be disruptive to uproot him. But, in the end of the decision the anti-military bias shows through: “although the disruption caused by her deployment was not her fault, this record does not demonstrate that Darrell’s best interests would be enhanced by a order a change (i.e. a return to his mother) in his present physical custody.”
Justices, Cardona, Peters, Spain, Carpinello and Lahtinen, should be ashamed of themselves for this blatantly anti-servicemember decision. Justices Cardona and Spain bear particular responsibility as they are prior military.
There are a large number of single parents in the military and particularly in the Guard and Reserves. The reason we have the Servicemember’s Civil Relief Act (SCRA) and the Servicemembers Employment Re-employment Rights Act (USERA) is to fulfil a public policy of maintaining the Guard and Reserves. Patriotic Americans who go the extra step and serve our country should not be punished by small minded people who are shielded by sacrifices that our military members are making every day.
Here, we have a Guardsman who did not shirk from her duty. She did not make excuses. When the call came, she raised her hand and went into a war zone. The thanks that a grateful nation bestowed upon her was to take her son away from her.
To add insult to injury the knife was wielded by Presiding Justice Cardona, a Viet Nam veteran.