Deployed military parents: choosing custody or duty

It’s not supposed to be that way. A federal law, the Servicemembers Civil Relief Act of 2003, was passed to prevent home foreclosures, car repossessions, and other civil court actions from proceeding during an enlistee’s deployment. Lt. Col. Melnyk cites the act as providing “powerful rights to mobilized custodial caregivers,” but acknowledges that its provisions are not always carried out by the courts. Indeed, many judges believe that the child’s “best interest” trumps military parents’ right to keep legal actions on hold during a long absence. Even when courts do obey the act, judges’ assumptions may work unfairly against parents in uniform. Advocates such as Sullivan acknowledge that family courts often face difficult choices as they try to balance the needs of military moms and dads, the feelings of non­custodial parents who may want to keep the kids, and the best solutions for the children themselves. But the results of some cases amount to allowing those noncustodial parents to overturn long-standing custody agreements simply because the other parent is, or has been, deployed.

Here’s how it happened to Tanya Towne. In 2004, just before she was sent to Tikrit, Iraq, Towne sat down at her kitchen table to fill out her Family Care Plan, a legal document required by the military that spells out what will happen to a child if the parent is deployed. But Towne made a crucial mistake. She had primary physical custody of her then-8-year-old son, Derrell. An A-student and avid skateboarder, the boy visited his father, Richard Diffin Jr., during summers and on other school breaks, as the former couple had agreed in their 1997 separation. Towne had been remarried for two years, to Jason Towne, and Derrell lived in Palatine Bridge, NY, with them and their infant son; Diffin lived in Virginia. The Townes felt that since Derrell was happy and well-adjusted in New York, it was best to keep him there, so Tanya tried to sign custody of her son over to her husband, the child’s stepfather.

As sensible as this arrangement may seem, under the law, a child belongs with a biological parent. If one parent becomes unavailable for an extended period, then by default the child generally goes to the other. Also, the Family Care Plan does not override court-appointed custody. It’s not surprising that Towne was unaware of these facts: Many military parents, acting in good faith, try to assign guardianship to siblings, parents, and new spouses, sometimes without even notifying the other biological parent about their deployment.

Towne did tell Diffin about the plan, but he saw things differently and went to Montgomery County Family Court in upstate New York to ask for temporary primary custody while she was gone. Towne hired a local attorney to argue that the boy should stay in New York, near his grandparents, aunts and uncles, and baby half brother. That was a bad move, says William E. Lorman, Towne’s current attorney: “The court took it as a lack of appreciation for the importance of the father-son relationship.” Diffin won a temporary custody order from Judge Philip Cortese, and the boy moved to Virginia in June 2004.

Still, the temporary custody was supposed to be just that — temporary. In some states, like Michigan and Kentucky, that order would have automatically expired upon Towne’s return and Derrell would have gone back to her home. “Other states, like Arizona and California, have rules that bar a parent’s deployment from being considered at all in a change-of-custody hearing; North Carolina has both protections,” explains Sullivan. New York, however, has neither, and the order that sent Derrell to Virginia had no expiration date. So when Towne landed back on American soil after a year and a half of driving armored Humvees and cargo trucks on supply runs out of Saddam Hussein’s former palace, Derrell wasn’t at Fort Drum in New York to greet her. Towne, then 30, tearfully embraced her parents and toddler, but her heart was torn. “All I wanted to do was see Derrell,” she remembers. “And he needed to see with his own eyes that I was back, and that I could be his mom again.”

But taking care of his son for the 18 months of Towne’s deployment had made Richard Diffin unwilling to go back to the old arrangement. He filed a petition to modify the original agreement and transfer primary physical custody of the boy to him. As an opening salvo in the fight, he had refused to let Derrell attend his mother’s homecoming.

So 10 days after her return from Tikrit, Towne appeared in Judge Cortese’s courtroom to argue her right to keep her son. To challenge her, Diffin needed to show that there had been a “substantial change of circumstance,” which generally means a significant alteration in the child’s or parent’s circumstances that justifies a change in custody. Instead, his lawyer told the court that the boy’s bond with his father had grown and that his life had stabilized. “He was stable during the eight and a half years he lived with me,” says Towne. “I honestly didn’t think that the judge would consider that a valid argument.” She wasn’t even in danger of being deployed again.

But Judge Cortese was sympathetic to Richard Diffin’s argument, and as Towne stood by, dumbstruck, he scheduled a custody trial for later that winter. Derrell would stay in Virginia, he instructed, while the case played out. All Towne got was the right to pick him up at Thanksgiving and again at Christmas that year.

Glumly, Towne reviewed her finances and withdrew money from a retirement account to pay her lawyer. To make matters worse, her second marriage was ending, a casualty of the couple’s long separation. Towne had withstood mortar explosions and roadside bombs in Iraq, but coming home, she recalls, “was like walking into a nightmare.”

In February 2006, the trial began. A poised, confident 10-year-old, Derrell told the court he didn’t prefer either parent above the other. Wherever he lived, he earned excellent grades and had friends. Both parents seemed polite and appealing. One of the few differences: Diffin and his wife of five years were still together but Towne’s marriage was over.

Towne’s attorney, Michael Sutton, asked Diffin why he had never fought for custody in the eight and a half years before Towne’s deployment, and Diffin admitted that until Towne went to Iraq, he had had no grounds. In other words, Sutton later contended, Diffin was only able to get into court to reargue the agreement because Towne had been mobilized. “If she hadn’t gone to Iraq,” says Sutton, “this wouldn’t have happened.”

Towne and her lawyer were both confident in that argument. But in August 2006, Judge Cortese ruled that Derrell’s father provided a more stable environment and awarded him primary physical custody, essentially reversing the old arrangement. Towne would have Derrell in the summer and on some holidays. The judge barely mentioned her service in Iraq, except to state that it had no impact on his decision. “It was a travesty,” says Sutton.

Derrell dissolved into tears at the news, and Towne decided to fight on, despite the financial hardship. Her appeal came before the Appellate Division for the Third Judicial Department of New York State Supreme Court in October 2007, and, in front of the five justices, Lorman, her new attorney, argued that it was inappropriate for the family court to use her deployment as grounds to contest a custody arrangement that had held since 1997. He noted that three states have laws forbidding this practice and five are considering them.

On January 3, the decision came down: Derrell would stay in Virginia. The judges ruled that while Towne’s deployment alone didn’t warrant leaving the boy with Diffin, the “consequences of her extended absence” had to be considered — meaning now that Derrell was in Virginia, it wasn’t in his best interest to move him again. Heartbroken, Towne wishes she’d fought her deployment. “I loved being in the military,” she says. “But I would never have chosen it over my child.”

As for Lisa Hayes, now 33, she does have her daughter, but she’s working two jobs to support her family. This past October came the final insult: a bill from the military for $9,108.75. Although Hayes’s discharge papers say otherwise, the Army claims that she owes money for the time she was AWOL but receiving a paycheck. “It seems to me to be a punishment for going to the press to help get the outcome she needed to take care of her child,” says her lawyer, Linda Theroux. Hayes is protesting; at press time, the bill had been reduced (to $7,435.71) but not withdrawn.

The entire struggle has left Hayes bitter. “We need more laws to help,” she says quietly. “Because as much as you love your country and want to serve, it’s tough. Nothing will be the same when you get home.”