http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2009/07/16/hearstmagfamily300514.DTL
Amy Engeler
Thursday, July 16, 2009
On Christmas 2006, Lisa Hayes slung her rifle across her shoulder and
headed over to the row of phones at Camp Cropper. Every day for the
past three weeks, the National Guard member had been calling the
States from Baghdad, trying to reach her young daughter, Brystal. The
little girl, then 6, was living with her father, Hayes's ex-husband,
Tim Knight, while her mother was in Iraq. Hayes had always been able
to reach her before, but now each time she called, she listened to
the phone ring and ring, and no one ever answered. Worried, she
phoned the police in Dublin, NH, the next day -- having no idea as
she dialed that she was about to become the public face of a growing
crisis confronting servicemembers overseas with children back home.
"The officer said, 'Please hold, there are some things I need to tell
you,'" Hayes recalls. "I was probably waiting for just moments, but
it felt like forever. I thought I was going to throw up. He finally
came back to the phone and said that Tim and his girlfriend, Brenda
Brown, had had several altercations at their house. Tim had been very
belligerent, and Brenda had duct-taped him and beat him up. The
officer, Ryan Quimby, was checking on Brystal daily to make sure that
she was OK."
Frantic, Hayes flew to New Hampshire a few weeks later, as soon as
she could get permission from her superiors, in hopes of scheduling a
court hearing to get Brystal away from Knight, who had temporary
custody while she was deployed. But family courts don't run on
military time, and Hayes's two-week leave expired before she could
get a hearing. A court date was finally set for March 2007, and she
flew back from Iraq again, on emergency leave.
The case was cut-and-dried. Officer Quimby gave graphic testimony
about the chaos in Knight's home. Brown had already pleaded guilty to
domestic assault, and Knight even admitted that he'd once hit
Brystal. Hayes walked out of the courtroom with a temporary custody
order. She had won, but without any close friends or family who could
take care of the girl, she had to choose: fulfill her duty to the
Army -- or to her daughter?
Such conflicts have increased as the population of the armed services
has changed. Since the draft ended in the 1970s, our all-volunteer
military has tried to retain enlistees by offering long-term career
possibilities and cash incentives. They've succeeded -- but in doing
so have caused certain changes. Once servicemembers were primarily
young, single male draftees; now they include more older, married
volunteers -- male and female -- who are more likely to have kids.
Single parents (divorced or unmarried) now comprise 142,319 of the
1,466,898 members of the active forces. But neither the military nor
the U.S. courts has fully recognized this reality, and when problems
arise with child care and custody arrangements, enlistees find
themselves in uncharted legal territory that neither system is
equipped to handle.
The trouble stems, in part, from a clash between local and federal
law. State law covers family matters, while many military issues fall
under federal jurisdiction. These two systems can be completely out
of sync, with the military often seeming unaware of state-court
requirements, and family courts apparently oblivious to military needs.
Hayes resolved her crisis by deciding that Brystal had to come first;
instead of returning to Iraq at the end of her leave, she stayed in
New Hampshire. In April 2007, she was officially charged with desertion.
Hayes spent two months living in fear of being seized while driving
back and forth to her daughter's school; then her lawyers suggested
going to the newspapers, on the theory that publicity might pressure
the military into finding a solution. Hayes finally agreed -- though
she says she felt humiliated at the idea of the press "airing her
dirty laundry" -- and last June she broke her story in New
Hampshire's Concord Monitor. Just after the news hit the paper, she
packed up Brystal, drove 300 miles to Fort Dix, NJ, and turned
herself in. The publicity tactic seems to have worked. Though her
previous requests for an honorable discharge had been refused, Hayes
was met that day by the fort's judge advocate general (JAG) attorney,
and they filled out the necessary paperwork, with Brystal at her
mother's side. Four days later, Hayes headed home, honorable
discharge in hand, ready to start over -- and figure out how to come
up with $24,000 in lawyer fees.
Attorney for the New Hampshire National Guard Francine Swan declined
to comment on Hayes's case. Pentagon spokesman Lieutenant Colonel
Les' Melnyk told Good Housekeeping, "The Department of Defense cares
deeply about both our servicemembers and their families. Any
servicemember who is deployed and experiences family problems back
home is subject to psychological stress that could decrease
effectiveness on the job and undermine military readiness."
While Hayes's story drew attention to the growing number of custody
problems of military personnel, her case was actually simpler to
resolve than most. More often, the disconnect between the courts and
the military puts parents in uniform at a serious disadvantage in
getting their kids back. "The situation is so unfair and so serious
that states need new laws to protect the rights of enlisted parents,"
argues Mark Sullivan, a retired JAG colonel who is now a family
lawyer in Raleigh, NC, and author of The Military Divorce Handbook.
Although nobody tracks the exact number of such cases, Sullivan has
amassed a huge binder of examples -- and Tanya Towne is one of them.
A longtime member of New York's Army National Guard, Towne returned
from Iraq at the end of her tour to find that her ex-husband wanted
to parlay temporary custody of their son into becoming the boy's
primary caretaker. And as their dispute played out in court, Towne
felt that, instead of being protected or appreciated for serving her
country, she was being penalized for it.
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."
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