Military divorces have unique problems and issues. Perhaps, the most common issues revolve around custody and visitation. A military divorce must address issues of the cross and out-of-state visitation, travel, and visitation in foreign countries and the issues created by mobilization and deployments.
One frequent custody and visitation issue involves mobilizing or deploying parents. The marital combination could involve two active-duty parents, mixed active and reserve/guard parents, two active/guard parents or only one military parent.
The classic case involves a dad in Germany and a mom in New York. Mom has physical custody and dad has visitation. Mom gets orders mobilizing or deploying her to Iraq. Under her family care plan, she will give custody to her mother or sister. As far as the Army, Air Force, Navy, Marines, and yes, the Coast Guard, are concerned, the mom has done her duty and can go. But, under New York law, there is a problem.
A second but related issue involves what happens after the parent with physical custody returns from deployment. Can she get her child back?
The starting point for these inquiries is New York family law. Under both the New York Domestic Relations law and the New York Family Court Act, and subject to some very limited exceptions, no one has superior rights to custody of a child over the natural parents. Legally, the mother’s power of attorney granting guardianship to her mother is trumped by the father’s rights.
Under the first scenario, in the absence of a court order, the father can walk into grandma’s apartment take the child and walk out. And there is nothing Grandma or mom can do.
Now, let’s change the facts a little. Mom has a separation agreement, but not a court order. If the dad takes the child he may be in violation of the agreement but will not be subject to arrest for violating a court order.
Finally, assume mom has a court order of custody. Even though she’s in Iraq, dad can’t just take the child. He must go to court in order to gain custody.
As a lawyer, I find that all three of those scenarios are messy. My solution is, typically, a military one: preplanning and prepositioning.
Any agreement or court order must contain provisions to cover the mobilization or deployment (I also include TDY as well) of the custodial parent. Generally, there should be a clause that states that the non-custodial parent has the right of first refusal in any situation where the custodial parent is mobilized, deployed or on TDY. This will resolve this problem.
But, what happens, I hear you ask, if we can’t agree? Well, that’s why the gal in the black robes gets paid the big bucks. In the event the parties can’t agree, the judge will decide. Generally, unless it is unsafe for the child to be with the non-custodial parent, Grandma loses out.
Moving on to the second problem of what happens when mom returns home. This one is a minefield. There have been several judges around the country who have permanently changed custody from the military parent to the non-military parent. The reasons given by the courts are, and I find as a military member, offensive. Basically, these judges believe that military service is incompatible with physical custody. There is a question in my mind whether this constitutes unlawful discrimination.
One way to try to avoid this problem is to specifically include in the divorce papers a clause that states that upon return, the custodial parent regains custody. I am not aware of any New York judge refusing to honor such a clause.
In fact, I had such a case before late Justice Ross in Nassau County. My client was mobilized under Noble Eagle. Under the terms of the divorce papers, she relinquished custody to the dad. When the end of her tour approached, dad made an application to change custody. Judge Ross did not grant the application and my client got her children back.
The real teaching point is that preparation and preplanning can go a long way to avoiding mobilization/deployment-related custody problems.
