Military Service Costs Some Men Their Children

March 29, 2004

Laws granting deployed soldiers special protections against civil legal actions date back to the Civil War. However, few of these protections extend to family courts and family law. As a result, military men's service to their country often creates the conditions under which they can become victims of terrible injustices. As America's military commitments in Iraq and Afghanistan persist, it is important to address the family law issues which military men and fathers face.

Some military men's service costs them their children. The federal Uniform Child Custody Jurisdiction and Enforcement Act provides that if a parent moves a child to a new state, that new state becomes the child's presumptive residence after only six months. Because a normal military deployment is six months or more, if a military spouse moves to another state while her spouse is deployed, by the time the deployed spouse returns the child's residence has been switched, and the spouse who moved the child is virtually certain to gain custody through the divorce proceedings in that new state.

The restrictions on military personnel's ability to travel, the high cost of legal representation, and the financial hardships created by child support and spousal support obligations make it difficult for returning service personnel to fight for their parental rights in another state. Many struggle to even see their children, much less remain a meaningful part of their lives.

To solve the problem, the federal Servicemembers Civil Relief Act of 2003 (SCRA) (formerly known as the Soldiers' and Sailors' Civil Relief Act) must be amended to specifically prohibit the spouses of active duty military personnel from permanently moving children to another state without the permission of the active duty military spouse or of a court. In addition, the UCCJEA needs to be modified to state that the presumption of new residence does not apply if the children are taken in this wrongful fashion.

Another family law problem for military fathers is paternity fraud. According to Carnell Smith, Executive Director of the National Family Justice Association, deployed soldiers are often "targeted and preyed upon" by unscrupulous "father shoppers" who falsely designate absent military men as the fathers of their newborns. He says:

"The military provides a steady, easily garnished income as well as medical care for the baby. It's hard to contest paternity when you're thousands of miles away and losing a good chunk of your income to child support. Sometimes the guy ends up on the hook for 18 years of child support simply because he served his country."

Several states, including Illinois, Georgia, Maryland, and Ohio, have addressed the problem through legislation which allows putative fathers more time and greater judicial flexibility to challenge paternity findings.

A third family law problem exists for fathers who serve as reservists and who have child support orders. Support orders are based on civilian pay, which is generally higher than active duty pay. When called up, a reservist sometimes pays an impossibly high percentage of his income in child support, which hurts his current family. Because those who fall behind in child support are charged stiff interest and penalties, a returning reservist may spend years working to pay off arrearages incurred during his service overseas. Worse, some could even face arrest and incarceration.

Normally when an obligor loses his job or suffers a pay cut he can go to court and request a downward modification. However, since reservists are sometimes mobilized with as little as one day's notice, few are able to obtain modifications before they leave. These soldiers cannot get relief when they return home because the federal Bradley Amendment prevents judges from retroactively forgiving support.

The solution is legislation like Missouri's, which requires that reservists’ support obligations be automatically adjusted when they are called up for active duty. The Illinois legislature is currently considering a bill to address this issue.

Navy veteran Taron James, who has joined with 600 other victimized veterans and their families to form the activist group Veterans Fighting Paternity Fraud, believes the injustices caused by current domestic relations law constitute a breach of faith with military men and fathers. He says:

"It's understood that when soldiers go off to serve they shouldn't have to worry about being taken advantage of while they're absent. Some of the guys making sacrifices abroad while being put through the ringer here at home must be wondering why they bothered."

Glenn Sacks

This column first appeared in the Honolulu Star-Bulletin (3/16/04)