American soldiers still losing custody of children while deployed due to lack of action by goverment

American soldiers still losing custody of children while deployed due to lack of action by goverment
March 3, 8:16 AM Albany CPS and Family Court ExaminerDaniel Weaver


Update: See new information posted at bottom of article concerning New York State law.
Richard Diffin, Jr. waited until his ex-wife, Tanya Towne, was deployed to Iraq, then he made his move, filing for custody of their son in Montgomery County New York Family Court. At first he was granted temporary custody by Philip Cortese, Montgomery County Family Court judge, then he parlayed the temporary custody into primary permanent custody. Tanya appealed to the State of New York Supreme Court, Appellate Division Third Judicial Department but lost.

In its January 3, 2008 decision the Supreme Court stated clearly that both mother and father were good parents. However, it also made it clear that the only reason Tanya lost custody of her son was that she was deployed, stating that the original custody arrangement "...but for the mother's deployment in 2004, might well remain in effect today."

Tanya's story was in the news for awhile, eventually becoming part of a Good Housekeeping story, Deployed Military Parents: Choosing Custody or Duty and was featured on NPR.
Tanya Towne's story updated

I caught up with Tanya recently via FaceBook and email to see how she was doing now that it has been two years since the appellate court ruled against her.

The most important question I had for Tanya was how the court's decision had affected her relationship with her son.

Tanya said, "I don't get to see him every month, sometimes its 6 months between visits because Virginia [where her son lives] has no Winter break so I have to wait from December until June to see him again. I get holidays every other year, and I get 2 months every Summer."

Tanya feels like she is somewhat of a stranger now to her son, and says that if it wasn't for texting she would hardly ever be able to communicate with him.

Tanya Towne just one of many soldiers who have lost custody of their children

As the Good Housekeeping article referenced above shows clearly, Tanya is only one of many military parents who have been deployed in Iraq and Afghanistan, only to find out when they get home that they have lost custody of their children due to loopholes in state and federal laws that are supposed to protect our soldiers against such actions while they are deployed. Some parents have gone AWOL rather than lose custody of their children.

I asked Tanya if any new legislation had been passed to close those loopholes. She was not aware of any. At one point she was asked to attend a hearing in Washington DC about new legislation to protect the rights of military personnel but was never contacted again.
While a press release from Tully Legal indicates that the Defense Authorization Bill of 2008, signed by President George W. Bush only 25 days after the appellate court denied Tanya's appeal, amended the law to protect soldiers like Tanya, the law apparently does not adequately remedy the situation. Only minor amendments were made to sections 584 and 586.
Deployed parents still not adequately protected from losing custody of children
A piece by CBS Evening News in December of 2009 shows that parents are still losing custody of their children while deployed overseas.
Representative Michael R. Turner, Ohio Republican and senior member of the House Armed Services Committee, also stated in an October 8, 2009 column in the Washington Times, Ensuring child-custody protectiion Military parents shouldn't be punished for deployment, that we are still not adequately protecting our soldiers' child custody rights.
In his opinion piece, Turner said:
"Unfortunately, the absence of child-custody protections for our military parents is not by accident. Defense Secretary Robert M. Gates remains opposed to federal child-custody protections simply because the Pentagon views such protections as "a matter of state law concern." Rather than working to implement a federal protection that would not infringe upon state law, which I am currently advocating in Congress, the secretary is blocking any such effort, opting to pursue a lengthy and unlikely course of urging each state to change its own laws. Mr. Gates refuses to meet with me to discuss this."
A few states have passed legislation to protect deployed parents but not New York State.
Advice for soldiers about to be deployed overseas

So I asked Tanya what advice about custody arrangements did she have for soldiers who are about to be deployed overseas.

"Get everything in writing and have it clearly written," Tanya responded. "I thought Derrell was to be returned to me as soon as I got back but a new petition changed that. Ask questions and discuss worse case scenarios with your attorneys. Unfortunately if you have joint custody there is no choice but to send the child with the other parent, but for others, make sure you leave them with someone you trust, put everything in writing, and cover all bases."

What disappointed me in both Judge Philip Cortese's and the appellate court's decisions is that they failed to mention or thank Tanya for her more than 16 years of service to her country. Neither did they mention the injustice of what happened regardless of its legality. (Judges have more than once mentioned the injustice of New York State's lack of no-fault divorce in cases where their ruling was in opposition to their sense of justice.) This in spite of the fact that when injustice involves him, Judge Cortese is more than willing to talk about it.

Tanya is now getting on with her life. Her cases in family and supreme court cost her thousands of dollars. She has been able to recover financially, owns her own home and is raising her other son who is five years old. However, she still pays child support for Derrell.

The troubling thing about Tanya's situation is that she suffered for nothing. The trauma that Tanya went through in trying to get her son back would have not been so bad, if at least it had resulted in laws being enacted to protect soldiers in the future from losing custody of their children due to deployment.

But that didn't happen because while Tanya Towne served her country faithfully, our legislators in Albany and Washington have been AWOL.
Article Update
According to one person who left a comment below, New York State has acted to protect the rights of the military concerning custody of their children.
Following is the appropriate part of the Family Court Act. I am not an attorney, but after reading the following I am not convinced that the law adequately protects soldiers. If I am reading it right, it still would not have helped Tanya Towne.
(f) Military service by parent; effect on child custody orders. 1.
During the period of time that a parent is activated, deployed or
temporarily assigned to military service, such that the parent's ability
to continue as a joint caretaker or the primary caretaker of a minor
child is materially affected by such military service, any orders issued
pursuant to this section, based on the fact that the parent is
activated, deployed or temporarily assigned to military service, which
would materially affect or change a previous judgment or order regarding
custody of that parent's child or children as such judgment or order
existed on the date the parent was activated, deployed, or temporarily
assigned to military service, shall be subject to review pursuant to
paragraph three of this subdivision. Any relevant provisions of the
Service Member's Civil Relief Act shall apply to all proceedings
governed by this section.
2. During such period, the court may enter an order to modify custody
if there is clear and convincing evidence that the modification is in
the best interests of the child. An attorney for the child shall be
appointed in all cases where a modification is sought during such
military service. Such order shall be subject to review pursuant to
paragraph three of this subdivision. When entering an order pursuant to
this section, the court shall consider and provide for, if feasible and
if in the best interests of the child, contact between the military
service member and his or her child including, but not limited to,
electronic communication by e-mail, webcam, telephone, or other
available means. During the period of the parent's leave from military
service, the court shall consider the best interests of the child when
establishing a parenting schedule, including visiting and other contact.
For such purpose, a "leave from military service" shall be a period of
not more than three months.
3. Unless the parties have otherwise stipulated or agreed, if an order
is issued pursuant to this subdivision, the return of the parent from
active military service, deployment or temporary assignment shall be
considered a substantial change in circumstances. Upon the request of
either parent, the court shall determine on the basis of the child's
best interests whether the custody judgment or order previously in
effect should be modified.
4. This subdivision shall not apply to assignments to permanent duty
stations or permanent changes of station.

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