Rights of Military Fathers

Fighting one war is hard enough. For many military fathers in the throes of divorce, where custody proceedings can be as stressful as deployment, they’re stuck fighting two wars. One is fought for the country; the other is fought for their children.

Yet, the soldier often doesn’t have a fighting chance where his children are involved.
Here’s a common scenario among divorced military dads on deployment:

Soldier Dad enlists in the military. He feels a sense of duty, and holds the notion that he’s giving his son a better world to live in.

Soldier Dad completes boot camp and gets to spend a short amount of time at home. Soon, his marriage falls apart and he decides to file for divorce, not expecting a deployment any time soon.

But then it happens. He’s notified of his new position across the world. Before he’s able to complete the divorce proceedings and subsequent custody agreement, he’s off trying to make the world a better place for his boy, before he’s even sure if he’ll be allowed to see him again.

While Soldier Dad is away, the judge presiding over his case grants sole custody of his boy to the mother, citing the child’s best interests. And still, the child is too young to understand what’s happening or where his father is.

When Soldier Dad gets a few free minutes, he tries to make the phone calls and write the emails in an attempt to stay up to date with what’s happening. But before he knows it, one of his wars is over, but not the one he wishes.

This scenario is more common than you’d think, and still no specific or effective legislation exists to prevent military fathers from losing custody of their children while they’re across the ocean on deployment.

So what are the rights of the father in this situation? The entire subject is shrouded in gray, at least until pending legislation works its way through Congress.

For now, the 2003 bill called the Service Members Civil Relief Act, signed by President Bush, is the main guide for deployed fathers. It lists several areas where a soldier’s dependents are affected when that soldier is in deployment.

For example, the bill gives soldier’s families protection from eviction in certain conditions, limits credit obligations to 6 percent interest, and it prevents instances of double taxation when the service member’s spouse is working in a state he or she isn’t a resident of.

As far as the issue of custody and alimony—there are no specific mentions. However, the bill grants a 90-day stay on civil cases for soldiers in deployment, and if an extension is applied for and denied, the court will appoint counsel for the soldier while he is away.

This is significant. The Sixth Amendment to the Constitution of the United States provides for free and effective counsel to a defendant, but only in criminal cases. To allow for this in a civil case is a great help to a deported solder, and not only from a financial standpoint. For a soldier to have an ally in the fight to see and spend time with his child is paramount.

Still, a 90-day stay for an active-duty soldier generally means the soldier will probably be using this counsel, since many active-duty soldiers are gone for much longer than three months. Using our general scenario involving Soldier Dad, any father who is deployed once proceedings are underway will most likely find himself communicating remotely through sundry emails and phone calls with his court-appointed lawyer.

While Congress wrestles to pass legislation before the current session ends, our military fathers will have to make due with the language in a 9-year-old bill.

For now, San Diego fathers can get the help they need from the Father’s Rights Law Center. We have more than two decades of military experience on our staff as well as an intimate knowledge of the legislative process. We can get you the help you need with your unique situation, and we won’t sit around while you’re languishing in a foreign land worrying about whether you’ll get to have a catch with your growing son. You’ve got enough to worry about. Let us give you peace of mind on the home front.

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