Fit for paternal duty: Those who serve and their children

One might assume the home front would carefully guard the parental rights of those who serve or have served in our armed forces. In fact, some lawyers are advising their clients that child custody and military service are incompatible.

The U.S. Supreme Court has held that parents have a fundamental right to rear their children. Meyer v. Nebraska, 262 U.S. 390 (1923). Meanwhile, courts throughout California make decisions about child custody every day by selecting a custody plan that is in the best interest of the child. One of the factors courts consider is the amount of contact each parent has with the child. A parent in the military can be at a distinct disadvantage in demonstrating the amount of time spent with a child when the soldier is deployed. Thus, there can be a tension between the rights of military parents and the best-interest of the child standard.

It's not clear just how much weight should be given to the best interest of a child when squared off against the constitutional rights of a parent. The U.S. Supreme Court, when faced with overwhelming evidence that grandparents could provide tremendous advantages to two little grandchildren, concluded a Washington statute that allowed for visitation by persons who "serve the best interest of a child," violated a mother's "due process right to make decisions concerning the care, custody, and control of her daughters." Troxel v. Granville, 530 U.S. 57 (2000).

Nor is everyone sympathetic to deployed soldiers who lose their children. A mother in New York, whose National Guard unit was deployed to Iraq and Afghanistan, was praised for her parenting by a New York court, but nonetheless the court found the deployment contributed to an unstable home life. Devoid of appreciation for the mother's service to her country, the father's attorney contended: "She was not drafted. This was a job choice. She went into it with open eyes." Custody of the boy was awarded to his father. Diffin v. Towne, 47 A.D.3d 988 (2008); "Soldier Loses Custody of Child After Iraq Tour," NPR (Feb. 14, 2008).

Both attentive and sympathetic to our soldiers and veterans is the California Legislature. While the California's post-Vietnam legislators deserve an F for the lack of attention given to those who served their country, our current Legislature is approaching an A+. One appeals court noted that today's Legislature has a growing concern about military service members and is making continuing efforts to protect their parental rights.

Family Court

The Legislature first enacted Family Code Section 3047 in 2005, perhaps recognizing how tricky and delicate child custody issues can be. The statute creates a presumption that when a parent's absence is due to a deployment or change of assignment in the military, the parent's failure to visit by itself is insufficient to justify a modification of a custody or visitation order. If a modification in custody is necessary because of military orders, it is deemed to be a temporary modification.

Let's look at a case involving a military father who returned from deployment to Afghanistan and asked the court to reinstate the original physical custody arrangement with him, just as the statute prescribes. Instead of providing for an efficient and expeditious process as intended by Section 3047, protracted court proceedings followed, including a court-appointed expert evaluation followed by an evidentiary hearing. The expert recommended the father not regain primary physical custody, and the family court refused to reinstate the pre-deployment custody order. On appeal, the father argued that the situation was a good example of what returning service members should not have to face. The Court of Appeal found the lower court erred in refusing to revert to the pre-deployment custody order. E.U. v. J.E., 212 Cal. App. 4th 1377 (2012).

Juvenile Dependency

Child custody issues are omnipresent in juvenile dependency cases as well. After the court has taken jurisdiction over a child, but before the court may terminate parental rights, child welfare services must be provided to give the parent an opportunity to reunify with a child.

A recent unpublished opinion demonstrates that courts are not always alert to the peculiar issues involved with veterans. An Iraqi War veteran with post-traumatic stress disorder was about to lose his child in juvenile court. The Court of Appeal criticized the trial court for not individualizing the reunification services provided to the father and for not coordinating with the Department of Veterans Affairs in overseeing the father's progress. The court said it expected the social services agency to think beyond the usual offerings of therapy, drug treatment, psychotropic medications and parenting classes when offering reasonable services for this disabled veteran. The appeals court concluded that reasonable services were not provided. Paul Q. v. Superior Court, A155455 (Dec. 28, 2018).

In another unpublished dependency case, the juvenile court considered a father's upcoming military deployment with the Navy as a factor in determining detriment to the child. The appeals court noted there was a finding the sailor's wife, the child's step mother, was loving and dedicated, and that there was no indication the child would not be safe with her while the father was at sea. Additionally, the court noted that the military has Fleet and Family Services available to help if necessary. The Court of Appeal remanded the matter for the juvenile court to again consider placement while the military father was away. In re Patrick S. III, D063016 (Aug. 15, 2013).

Education About Military Issues Is in Order

Military families often have unique qualities. They are sometimes more authoritarian than civilian families, and commonly have experience with transitioning environments. Because they often function without extended family support networks close by, they tend to readily cope to new locations and challenges.

In the above family law case, the judge noted that when he was a child, he did not enjoy frequently changing schools, and it was not in the boy's best interest to move him out of his current situation, stating the child was in the sixth grade and his friends and sports were paramount. OK. But if there is one thing we know for sure about military families, it is that they have considerable experience with deployments and relocations. Children in military families might move 20 times during their childhood. On average, military families move every two to three years. Applying civilian standards to military families may not be the best way to evaluate a situation.

When it comes to providing reunification services to a service member or a veteran with a disability suffered in the military, courts and lawyers can easily interact with someone from the military or the VA. Most counties have veterans service officers who routinely assist families. Plus, public agencies, volunteer groups and churches help service members and veterans every day. And wherever there is a military base, family services are readily available.

It is also important for lawyers and judges to be aware of a military/veteran component in a case in order to gauge possible misconceptions on the part of child custody evaluators. Military parents are sometimes absent from their children's lives during crucial developmental periods, and biases toward military families have been shown to influence the outcome of custody evaluations. 50 Fam. Ct. Rev. 310. With a background of knowledge about military culture, careful examination of the factors within a particular military family that contributed to the family's prior strength and resilience when the family "worked," is necessary.

While our country has seen many wars, we don't necessarily have much history with modern military family life. Prior to the end of the draft in 1973, our military forces were primarily comprised of single men. Now women are about 15 percent of the military, and about 60 percent of those serving are married. And we can't forget all the single parents and blended families. With all-volunteer forces, we rely heavily on the Reserves and National Guard. They are really citizen soldiers, who drop their daily, mainly civilian lives when they are called. Faced with these evolving demographics, family and juvenile courts are seeing increasing numbers of child custody issues among families with a service member or veteran. It behooves all of us to learn more about military culture and veteran aftermaths to arrive at a reasonable balance that avoids penalizing a parent for military service, or the residuals of service, and at the same time meets the best interest of the child standard. Application of the same models ordinarily applied in civilian situations may be unwarranted. California courts and lawyers need to sit down and think these issues through, and then provide training and education so that military parents and children are not penalized because a parent is serving or has served in the military.