The Betrayal of the Military Father
By Glenn Sacks http://glennsacks.com/the_betrayal_of.htm
When Gary, a San Diego-based US Navy SEAL, was deployed in Afghanistan in the wake of the terrorist attacks on the World Trade Center, he never dreamed that his service to his country would cost him his little son. Gary's son was not taken from him by a terrorist or a kidnapper. This 17-year Navy veteran with an unblemished military and civilian record was stripped of his right to be a father by a California court.
Gary's story, which was the subject of a two-part Fox News feature called "SEAL, Sorrow" earlier this year, is not an unusual one. Under the Uniform Child Custody Jurisdiction and Enforcement Act, if a parent takes a child to a new state, that new state becomes the child's presumptive residence after six months. Because a normal military deployment is six months or more, if an unhappily married military spouse moves to another state while the other spouse is deployed, by the time the deployed spouse returns the child's residence has already been switched. Since courts lean heavily in favor of a child's primary caregiver when determining custody, the spouse who moved the child is virtually certain to gain custody through the divorce proceedings in that new state.
Because of the strict restrictions on travel by active military personnel, the cost of legal representation, and the financial hardships created by child support and spousal support obligations, it is very difficult for returning service personnel to fight for their parental rights in another state. Many struggle even to see their children, much less remain a meaningful part of their lives, and the bond between the children and their noncustodial parent is often broken for years, if not permanently.
Gary has not been able to see his son, who now lives abroad, in nearly nine months. When he calls he can sometimes hear the three year-old ask "when daddy come?" and "where's daddy?" in the background but he is often prevented from speaking with him.
According to nationally-known family law attorney Jeffery Leving, author of Fathers' Rights , there are three solutions to the problems facing military fathers. First, the federal Soldiers' and Sailors' Civil Relief Act of 1940 needs to be amended to specifically prohibit the spouses of active duty military personnel from permanently moving children to other states without the permission either of the active duty military spouse or of a court. (The primary purpose of the Act, whose origins go back as far as the Civil War, is to protect active armed forces personnel by mandating that civil actions against them be delayed until after their return from service).
Second, California laws, which currently do little to prevent a custodial parent from moving children far away from the noncustodial parent, need to be changed to prohibit any permanent removals done against a deployed military parent's will. Third, the UCCJEA needs to be amended to state that the presumption of new residence does not apply if the children are taken in this wrongful fashion.
Gary has lost nearly $100,000 so far fighting for his son and may soon be forced to declare bankruptcy, which in turn will destroy the top secret security clearance he needs for his job. Worse yet is the emotional devastation wrought by his separation from his son and the knowledge that he may never see him again. He says:
"My love for my son cannot simply be brushed aside as the courts seem to believe it can. I can remember holding my little son's hand like it was yesterday. I can remember his cry. I hear it every time I hear another child crying."
"Sometimes I wonder what I risked my life [in Afghanistan] for. I went to fight for freedom but what freedom and what rights mean anything if a man doesn't have the right to be a father to his own child?"
Families and the War
By Dianna Thompson and Glenn Sackshttp://www.glennjsacks.com/families_and_the.htm
As the United States prepares for war against Iraq, tens of thousands of fathers who serve as reservists are preparing to say goodbye to their families and serve their country overseas. Yet, America's enemies abroad are not the only danger these dedicated men will face. Upon return, those with child support orders will face a threat here at home ? the war that is being waged against "deadbeat dads."
Bobby Sherrill, a divorced father of two from Parkton, N.C., was a casualty of that war. Mr. Sherrill, who worked for Lockheed in Kuwait before being captured and held hostage by Iraq for nearly five harrowing months, was arrested the night he returned from the Persian Gulf War. Why? For failing to pay $1,425 in child support while he was a captive.
If laws are not changed, thousands of today's reservists could face a similar threat. Reservists' child-support obligations are based upon their civilian pay, which is generally higher than their active-duty armed forces pay. When a child-support obligor's pay decreases, the remedy is to go to court and get a downward modification. However, since reservists are often mobilized with as little as 24-hours notice, few are able to get these modifications before they leave. As a result, many reservists fall hopelessly behind while serving, and can be subject to arrest for nonpayment of child support upon their return.
For example, a naval reservist who has three children and who takes home $4,000 a month in his civilian job could 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 $1,912 before taxes, in addition to a housing allowance.
States assess interest on arrearages as well as penalties on past-due child support. Because the federal Bradley amendment prevents judges from retroactively modifying or forgiving support, obligors who fall behind for legitimate reasons cannot have these arrearages wiped out. And even those returning servicemen who avoid jail or other sanctions may still spend years trying to pay off their child support debt ? a debt created entirely by their willingness to serve their country.
Though the Family Support Act of 1988 allows noncustodial parents who have had a reduction in income to request a decrease in their child support by getting downward modifications, few state agencies honor such requests. According to Elaine Sorensen of the Urban Institute, even among fathers who experience income drops of 15 percent or more, less than one in 20 are able to get courts to reduce their child-support payments. Because state agencies are federally reimbursed for every child-support dollar they collect, states have a powerful incentive to grab and hold on to every dollar they can.
Another problem is that the child support money that the armed forces are supposed to take out of reservists' paychecks and send to their families sometimes does not arrive. This was an issue for many Gulf War veterans, and reservists are having similar difficulties today. For example, Diane Keary, a custodial mother from Monsey, N.Y., has not received a child-support check since Joseph Keary Sr., her ex-husband, was called to active duty five months ago. Computer glitches such as this, as well as billing errors, can leave reservists subject to government sanctions upon their return.
What is needed to solve the problem is legislation like that passed by the Missouri legislature in the days leading up to the Gulf War. The Missouri statute, which is unique in the nation, requires an automatic adjustment of support for reservists called up for active duty.
During the Gulf War, more than 250,000 reservists were called up, and today more than 75,000 reservists and National Guard troops are on active duty as a result of the events of September 11. Many are now being notified that they will be expected to serve another year, and a total of 1.3 million reservists could be called into service for indefinite periods in the event of war.
James, a 16-year veteran of the Navy and the commander of a 177-member Naval Reserve Unit on the West Coast, is concerned about the effect that the current child-support policies could have upon his sailors when they are called to active duty. He says: "My people are sacrificing a lot to serve. I want them focused on our assigned mission. I don't want them worrying that their own government might come after them.
This column first appeared in the Washington Times (11/21/02).