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The problem: Family law and the Military lifestyle , two oncoming trains. ... Diffin v. Towne, 787 N.Y.S. 2d 677; 3 Misc. 3d 1107 (Family Ct. NY 2004) ...

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good to go

Good to go…

Family law issues and deployment

family law and deployment not perfect together
Family Law and Deployment: Not Perfect Together

The problem: Family law and the Military lifestyle , two oncoming trains.

Train 1: Operational needs and Global war on terror makes geographic change virtually certain. Guard and Reserve mobilizations at an all time high.

Military members wish to actively parent their children, often in non-traditional family units.

the changing nature of family law
The changing nature of Family Law
  • Family law reflects the societal changes in the status of family: Joint custody, shared parenting, third party custodians, blended families, single parents.
  • Federalization of Family Law: UCCJEA, UIFSA, VAWA, IPKPA, ICARA.
  • Train 2: Family law reflects at its core the basic premise that changes in geography and career responsibilities are VOLUNTARY
troxil v granville
Troxil v. Granville
  • In 2000 the United States Supreme Court rendered a rare decision addressing the Constitutional rights of a biological parent in the parent/child relationship.
  • Troxil v. Granville, 530 US 57, 147 L.Ed 49, 120 Sup.Ct. 2054 (2000).
don t ask don t tell avoiding conflict and family law
Don’t Ask Don’t Tell: Avoiding Conflict and Family Law
  • Reasons family law issues become emergencies
  • No easy answers or fixes
  • Mobilizations and Reassignments mean lack of continuity or “ do overs”
  • Conflict avoidance means the issue isn’t addressed until a crisis ensues.
preventative law opportunities to prevent a melt down
Preventative Law: opportunities to prevent a melt down
  • Family Care Plans : Best preventative tool
  • Anticipating Military lifestyle in Separation and Parenting Agreements.
  • Estate planning with complex family issues considered
  • Agreements reduced to Judgments and Orders
  • Effective client counseling
scra and family law
SCRA and Family Law
  • Decisionmaking in Family law, particularly when children are involved, requires the Court to exercise its discretion while keeping the “best interest of the child” ever before it.
  • As a result, in order to evoke the protections of the Act for the imposition, or extension of a stay of proceedings, there must be strict compliance with the Acts requirements.
case law
Case Law:
  • In re Marriage of Grantham; Iowa Supreme Court

698 N.W 2d 140, ( Iowa 2005) Lexis 75.

  • Diffin v. Towne 787 NYS 2d 677 (2004)
  • Diffin v. Towne (2) 849 NYS 2d 687

(decided January 3, 2008)

scra case law
SCRA Case law
  • Bradley v. Bradley 137 P.3d 1030; 282 Kan. ; (Kansas Supreme Court, 2006)
  • (issue: child custody/deployment
  • SCRA not applied because servicemember failed to furnish supporting documentation required.)
scra case law14
SCRA case law:
  • In the Interest of B.T.T. 156 S.W.3d 612; (December 15, 2004) (Court of Appeals, San Antonio TX)
  • (issue: multi-state litigation, child support enforcement, violation of SCRA found)
scra caselaw
SCRA caselaw
  • George P. v. San Luis Obispo Social Services; 127 Cal.App.4th 216; 24 Cal Rptr. 3d 919 (Court of Appeal Feb.2005)
  • Issue: juvenile dependency case, termination of parental rights, court grants 90 day stay, denies request for additional stay.
scra caselaw16
Scra caselaw
  • State of Missouri, ex.rel. Estate of Marvin J. Perry et.al. v. Hon. Ellen Roper, Judge, John Perry and Allan Perry 168 S.W. 3d 577 (Mo.App. 2005)
  • Issue: statute of limitations applicable to probate matter tolled by active duty service/SCRA.
scra caselaw17
SCRA caselaw
  • Hernandez v.Hernandez, 169 Md. App. 679; 906 A.2d 429 (Court of Special Appeals Maryland 2006)
  • Issue: multi-jurisdictional divorce litigation , court upholds automatic /non-discretionary nature of stay in divorce/custody litigation. Court remands and vacates orders rendered.
scra case law18
Scra case law
  • Krutke v.Krutke 279 Wis. 2d 519; 693 N.W. 2d 147 (not approved for publication, Court of Appeals Wisconsin 2005)
  • Issue: child support “agreement”/ reservist deployment to Iraq. No demonstration of “material effect”.
scra case law19
SCRA case law
  • Jones v. Van Horn (two cases) 283 Ga. App. 144; 2006 Ga App. Lexis 1576; (December 2006 Georgia Court of Appeals)
  • Issue : Language in separation agreement regarding custody related to deployment, SCRA not applied because member did not move with necessary information under the Act.
scra case law20
Scra case law
  • Mc Cubbin v. Mc Cubbin Case No. 06-4110-CV-C-NKL, United States District Court for the Western District of Missouri, ( June 2006 Lexis 62495)
  • Issue: Abduction Convention/ SCRA, servicemember concedes that SCRA not expressly applicable, but argues that any period of time used to establish habitual residence while deployed inapplicable.
lessons learned
Lessons learned
  • “A child’s life cannot be put in suspended animation awaiting the return of a service member to proceed with the case on the merits” Lenser v. Mc Gowan.
  • These cases are fact specific , remember these Judges do NOT know what a service member does for a living.
slide22
Good faith is a necessary prerequisite.
  • It is bad faith, per se, to withhold information about mobilization and deployment until there is no effective legal remedy to address the problem.
  • Consider the possibility of anticipatory relief, under 50 USC 591.
  • Remember that under 591 the obligation or liability must have been in being or incurred PRIOR to the service members military service. (Refers to ANY obligation)
we have a deal don t we
We have a deal, Don’t we???
  • Why “agreements” without orders complicate things.
  • A signed agreement is “evidence”, not an order.
child support
Child Support
  • Because military regulations address non-support, often an order is not sought or obtained. Service members believe that they must comply with the military orders rather than a judicial finding.
  • In almost all cases in which you are representing a military member, obtaining a court ordered child support amount will be more favorable then an “interim” support with no order.
military guidelines where there is no order
Military Guidelines where there is no order
  • Air Force: Requires complainants and Service members to utilize civilian courts for nonsupport issues. However if service member receives BAH at “with dependents” rate and refuses to support, BAH will be terminated and AF will recoup.
military guidelines cont
Military Guidelines Cont.
  • Marine Corps: Provides guidelines denominated as “interim Financial support standards”. The regulation is punitive. Commander has discretion to reduce or eliminate the support if:
  • Spouses gross pay exceeds marines
  • “Interim” support has continued for 12 months
  • Marine has been a victim of substantiated abuse
  • Marine is paying regular and recurring family obligations
military guidelines cont27
Military Guidelines cont.
  • Navy: In the absence of an agreement or an order, a unit commander may determine adequacy of support using a rough percentage guide.
  • Spouse only 1/3 gross pay;
  • Spouse and one child ½ gross pay;
  • Spouse and two or more 3/5 gross
  • Spouse and four or more greater than 3/5
  • 1 minor child: 1/6; 2: ¼; 3: 1/3.
  • Gross pay, is base, BAH but not BAS, or hazardous duty pay, foreign duty or incentive.
military guidelines cont28
Military Guidelines cont.
  • Coast Guard: If after counseling servicemember demonstrates a pattern of non-support, and/or failure to obey civil support orders, Service member subject to administrative discharge for unfitness.
  • There is a scale provided in the absence of an order or agreement based upon percentage.
  • Defenses to non-support to a spouse include infidelity or desertion, to a child the inability to ascertain the welfare and whereabouts.
military guidelines cont29
Military Guidelines Cont.
  • Army : Has the most extensive and complex regulations.
  • Upon the unit commander being notified by a family member or their representative that a service member is not providing adequate support, commander can act in punitive manner for failure to comply.
  • The support figure is calculated through a matrix of BAH table
no retroactive modification
No retroactive modification
  • Federal law prohibits the retroactive modification of child support obligations. Thus it is the gift that keeps on giving.
  • If there is an “agreement” to the modification of support obligations during a period of mobilization or deployment, it MUST be accomplished in the form of an order to insure enforcement.
the powerful power of attorney
The Powerful Power of Attorney
  • A power of attorney is NEVER effective for the transfer of rights of custody of a minor child.
  • NEVER EVER
being of sound mind not
Being of Sound Mind: NOT
  • Estate planning considerations
  • While young sailors/soldiers may not have complex financial estates, many have complex family situations.
  • “single” parents, non-married partners, grandparent custodians.
  • Remember children cannot be conveyed in a will.
  • Guardianship/Trust issues
  • Death benefits
case law33
Case Law
  • Diffin v. Towne, 787 N.Y.S. 2d 677; 3 Misc. 3d 1107 (Family Ct. NY 2004)
  • “ …the Mother (Servicemember) was advised that she is required to make a plan for her child during her active duty. She stated that she has executed guardianship papers allowing for her current husband and her mother to care for the child. Her plans did not include the joint legal custodian and natural father of the child…”
slide34
“…The mother’s ‘plan’ would be in derogation of the father’s parental and custodial rights and hardly in the best interest of the child.”
six things each jag should read
Six things each JAG should read
  • Medill v. Medill ( Custody Jurisdiction, interstate, military )
  • In re Grantham (SCRA gone bad)
  • Friedrich v.Friedrich ( Understanding International Child Abduction )
  • Diffin v. Towne (Family Care plan/ Temporary custody)
  • UCCJEA, UIFSA and state interference with custody statutes.