By Mark David Blum, Esq.
There was an AP news story making the rounds this weekend about how American soldiers, whether active duty, reservist, or National Guard, who when sent abroad to surge ahead with this stupid war in Iraq, are being surrounded and sniped at here at home. I speak not of leftist screaming anti war liberals nor of isolationist reactionaries. Instead, it is our very own Court system that has focused our soldiers in its cross hairs and triggering more pain and suffering than could ever be inflicted by an insurgent IED.
Specifically, single parents who are being sent abroad are having custody stripped away from them as a direct result of their answering the President’s call. The assertions in the newspaper were that parents with custody of their children who are sent into combat come home to find that custody has been stripped away from them because of their absence.
As an attorney and officer of the Court, especially one who practices in New York, I am well aware that the Soldiers and Sailors relief act is required to provide safe haven and comfort to our troops who are unable to defend themselves at home against conniving former partners. I am required by law to give credibility to the judicial system and trust the person on the Bench is going to do the honorable, proper, and legal thing under the circumstances. “No way”, thought I would a New York judge dare to take custody away from a custodial parent merely as a result of deployment in a combat zone.
Yesterday, I saw first hand how one Jefferson County Supreme Court Judge added another soldier and his children to the growing list of casualties. Perhaps our President needs to Order another Stop / Loss here at home so that no more children are lost to this failed foreign policy. As the attorney of record for an American soldier in his 17th year of service and who is standing ready for his third deployment to Iraq and who had custody of his children, I stood in a Court of Law in the State of New York and was told an “emergency hearing” is going to be scheduled so that custody can be changed to the non serving parent. Worse still is that the soldier has not yet received his Orders. So far as he and anybody else knows, he could spend the next two years sitting on his bunk and not moving an inch outside Fort Drum. But that did not stop this judge from moving forward with his efforts to strip away the soldier’s children.
(The following is a purely hypothetical fact pattern. If you think you recognize yourself or someone else, that resemblance is purely a matter of your own paranoia). Hypothetically speaking: You are an American soldier who with honor and distinction, served your country for almost two decades. You will spend two more decades cleaning the blood out from under your fingernails. Upon return from one of a tour in a combat zone, instead of an open and welcoming vagina, your wife was presents you with a contract for Separation and Divorce. She tells you she is moving in with your former friend, himself a married man she had been screwing the entire time you dodged snipers and mortars. This contract settled all issues of the marriage; but included the one single thing that was most important to you. She consented and agreed that you would have custody of the children. There were a lot of reasons for this including how she wanted to explore her bisexual swinger alcohol drenched lifestyle and that she preferred to assume responsibility for another woman’s children. Though doing so breaks your heart, you agree with her proposed contract and life has been relatively stable since. One critical factor in your discussions was that at times you were going to be unable to parent the children. Whether it through deployment or classes or being sent to a new base overseas, there were going to be significant stretches of time where you were going to be unable to be a full time parent. Bringing children into the Green Zone just doesn’t cut it. Settlement of that issue was that your soon to be ex would not be required to pay any child support because of the occasional heavy lifting she was going to do. One day, some lawyer tells her that if she fights for and wins custody, she gets a windfall of child support from you. Suddenly, you are sued for custody and child support. The only legally stated reason therefor is because your unit has been notified you are on standby for a deployment which may or may not happen; depending on whether the Democrats grow a pair.
I find myself embroiled in just such a hypothetical in Jefferson County. I answered a panicked “EMERGENCY” Motion filed by the wife’s attorney begging the Court to change over custody and make a huge child support award against the Father soldier. Though there is no departure date for the father soldier, the mere fact that the father soldier is even facing deployment was good enough a reason for the judge to agree to an emergency hearing to change custody. I was not given so much as a fair opportunity to even conduct the barest of discovery. The stage is set for an epic battle next month.
Under New York’s law, parties are heavily encouraged to settle their claims in a divorce case. Courts are required to give great deference to such agreements and cannot overturn them absent a very narrow set of circumstances. Surveying decisions, Courts write in nearly every single one of their opinions and most good lawyers will include language in the actual contract which states that the contract “resolves all the issues of the marriage.” One of those issues, of course, is the custody and visitation arrangement between and amongst the parties. Under contract law, one should consider this issue settled and resolved by the children’s closest and most concerned person: Their parents.
At the same time under New York law, the Courts have taken it upon themselves and created a new theory at law that says “children and the custody and support thereof are always subject to judicial supervision on the standard of what is in the children’s best interests. As applied: No matter what say the parents or how they feel or their own machinations to accommodate their lives and their own children, a total stranger – a Judge – takes it upon themselves to sit as a Super Parent. The issue is not are the children and parents the happiest they can be under the circumstances. Suddenly, two parents find themselves shouldered with the whims and subjective child rearing attitudes of near septuagenarian in a worn out robe. (Read my more detailed writings on this subject here and here. If you want to see what happens forty years hence, read all about that here, here, and here).
What makes the Jefferson County case so utterly disturbing is how the Court itself is behaving throughout. Rumors run rampant at Fort Drum at how this particular judge is abusive and harsh in his dealings with soldiers. Until yesterday, I dismissed that rumor as the disgruntled mumblings of a losing party.
As I said, my client is a soldier father with custody of his children by agreement with the Mother at her insistence. After a year goes by without a problem, father soldier files for divorce based on the contract and the matter should have gone to its natural and final conclusion. Instead, not only does the wife suddenly challenge the entire contract but she now is demanding custody and child support (including arrears). The tactical maneuver is clear; it is a shakedown for more money for settlement. I don’t fault the Mrs. nor her lawyer; that is The Business of Divorce. At the same time, the Mrs. goes running to the Court crying wolf that the father is about to imminently deploy and she needs an emergency Order of custody and mass quantities of child support. The case, she says, must go to trial.
On a good day, this judge is a grumpy old man who comes into court angry at the world, seems to have his mind already made up, and treats everybody in front of him with great disdain. He forgets his role is to mediate a dispute between two citizens and to provide an equitable forum in which to be heard. Instead, he treats everyone like they just got sent to the principal’s office for clowning around. Once I heard him tell clients right in front of their lawyers that it was the lawyer’s personalities that kept this matter from being settled and that their lawyers are the reason for chaos. That was about the closest I have ever come to spending a night in jail as no judge should ever say such a thing to any client in front of their attorney and I was about to tell him so. Alas, but the client always comes first and being held in contempt would not advance the client’s cause. So I held my tongue.
So we show up in Court and the very first thing the lawyer for the Mrs. says is, “woops, nevermind Your Honor. We found out he aint going.” Under normal circumstances, that should have been the end of it. But the judge wouldn’t let go. Because the father soldier could leave tomorrow … or a year from tomorrow … for Iraq, Afghanistan, or other parts unknown … the judge still decided to hold a sudden and emergency hearing to determine custody and child support. You could read between the lines and know exactly where his decision is headed. Without giving a chance for deposition or to conduct any discovery, the judge set a quick trial date.
The judge already knows the evidence and testimony that is going to come. Both sides are going to contest the contract. Both sides are going to argue they are the better parent. One side will argue the agreement of fifteen months earlier was solid, well thought out, and not secured by fraud. The other will say custody must be changed because of deployment. Obviously nobody can predict the judge’s decision. But the fact the hearing has even been scheduled speaks volumes about the law’s attitude toward the United States Military and parents who serve therein.
Those who know me and my writings have seen my strong position on State’s Rights, how I advocate concepts of Jeffersonian Libertarianism, and that there should be no role the Federal Government plays in such State spheres such as the family and custody. The State itself should likewise be very limited in its scope of invasion of our private spheres. Yet at the same time, the Federal Government has taken possession of the person of the New York father soldier and directs his every movement, thought, and situation.
For those who sweat blood and face bullets, I call upon my Congressmen and Senators to enact emergency legislation that prevents any State Court from taking any action against an active duty soldier solely because they wear the uniform. This includes custody. If you think the President’s policy of Stop / Loss is bad, you should see the face of a father soldier feeling the loss of his children because his President cannot stop surging into war. If you perceive the horrors of Walter Reed and pain of injured vets, imagine the pain in the heart of a parent losing contact with a child and suffering financial hardship for no other reason than choosing to serve their nation.
We owe our soldiers more. Someone must stop this continuing loss.
