Custody Findings Delayed During Military Deployment

Judges in New York will be prohibited from making permanent child custody decisions when a parent has been activated or deployed by the U.S. military, under a bill signed by Governor David A. Paterson. Sponsors said the legislation (A8722/S5860) would guarantee that the custodial status of military personnel will not be permanently changed because of their physical absence from their children while on military duty.

The amendment to Domestic Relations Law ' 75-1 does allow judges to make temporary modifications to custody orders, if such changes are in the best interests of the children of deploying service personnel. Deployments can be within the United States or overseas. However, upon return to New York of the service member, either party in a custody arrangement can request a new hearing at which a court will decide if there has been a change of circumstances that would justify making modifications to the pre-deployment custody order, the legislation stipulates.

The Impetus

About 10,000 members of the state's National Guard have been activated since the 9/11 terrorist attacks. They have served in the United States on homeland security duty, and at military installations in the United States and in Afghanistan, Iraq and elsewhere in the Middle East, said a New York National Guard spokesman, Lieutenant Colonel Richard Goldenberg.

The sponsors of the measure, Assemblyman Felix Ortiz, D-Brooklyn, and Senator Mary Lou Rath, R-Williamsville, said their bill was in response to concerns raised by New York National Guard members that their custodial status could be altered because of their military-ordered deployments. Mr. Ortiz said he first heard complaints from service members two years ago when he was chairman of the Assembly's Veterans Affairs Committee. The assemblyman said it made sense to effectively put any questions about permanent custody status on hold until military personnel return to New York and can contest custody disputes, if they are to occur, fairly.

Views on the Bill

From the standpoint of a Guard member, Goldenberg called the legislation a “very good bill.” Added the lieutenant colonel, “A number of states have taken similar actions to help protect the rights of their service members in their national guards.”

In January, an Appellate Division, Third Department, panel upheld a female National Guard member's loss of primary custody of her son following her stint in Iraq in 2004 and 2005. Diffin v. Towne, 47 AD3d 988 (2008). While Tanya Towne's deployment in and of itself did not constitute a change of circumstances that would warrant a modification of custody in favor of her boy's father, the court there stated, “[W]e must consider the consequences of her extended absence in determining whether such a change exists.”

The Legislation

The bill signed by Mr. Paterson extends custody status protections for active-duty military personnel established in a 2003 federal law, the Sevicemembers Civil Relief Act, according to Albany military family law attorney Greg T. Rinckey. The federal law prohibited default judgments in child custody cases against active-duty personnel and allowed service members to seek a stay of a proceeding based on their deployment status. Amendments proposed in an appropriations bill introduced in Congress in late August that are nearly identical to those in the legislation approved by Mr. Paterson have yet to pass, Rinckey said.

“I think this is great,” Rinckey, a partner in Tully, Rinckey & Associates, said of the new law in New York. “For service members that are deployed, this is the last thing that should be on their minds.”

Rand R. Timmerman, a solo practitioner in Watertown, Jefferson County, said the judges he appears before in northern New York recognize the protections for military personnel in the federal Servicemembers Civil Relief Act and have tried to encourage parties in custody cases to work together when deployment is imminent. “My experience has been that judges have been very, very good about that,” Mr. Timmerman said in an interview. “If it is a custody matter, most of the time the lawyers will work out something with the person being deployed, they'll make sure they can see the kids as much of the time before they go and toll it [the temporary order] so when they come back, any issues of visitation and custody are being put on the table.” Mr. Timmerman, a family law specialist, said a third or more of his caseload typically involves military personnel or their families. Watertown is about 10 miles from Fort Drum, home of the U.S. Army's Tenth Mountain Division.

While Mr. Timmerman said the new law created by Mr. Paterson is welcome, he said the governor could aid military family law practitioners even more by finding a way to have Family Court orders issued in New York uniformly enforced in other states. When military personnel are deployed from New York, their families often go to live with friends or relatives in other states, often making the orders issued by New York courts unenforceable, Mr. Timmerman said. “That's a huge problem,” he said.

Conclusion

In a brief memo to Gov. Paterson's office about A8722/S5860, the Office of Court Administration said it was not opposed to the legislation and that the bill would have a minimal impact on the operations of the courts. The bill will take effect on March 24, 2009.

Joel Stashenko is the Albany Bureau Chief for the New York Law Journal, an Incisive Media sister publication of this newsletter.

Judges in New York will be prohibited from making permanent child custody decisions when a parent has been activated or deployed by the U.S. military, under a bill signed by Governor David A. Paterson. Sponsors said the legislation (A8722/S5860) would guarantee that the custodial status of military personnel will not be permanently changed because of their physical absence from their children while on military duty.

The amendment to Domestic Relations Law ' 75-1 does allow judges to make temporary modifications to custody orders, if such changes are in the best interests of the children of deploying service personnel. Deployments can be within the United States or overseas. However, upon return to New York of the service member, either party in a custody arrangement can request a new hearing at which a court will decide if there has been a change of circumstances that would justify making modifications to the pre-deployment custody order, the legislation stipulates.

The Impetus

About 10,000 members of the state's National Guard have been activated since the 9/11 terrorist attacks. They have served in the United States on homeland security duty, and at military installations in the United States and in Afghanistan, Iraq and elsewhere in the Middle East, said a New York National Guard spokesman, Lieutenant Colonel Richard Goldenberg.

The sponsors of the measure, Assemblyman Felix Ortiz, D-Brooklyn, and Senator Mary Lou Rath, R-Williamsville, said their bill was in response to concerns raised by New York National Guard members that their custodial status could be altered because of their military-ordered deployments. Mr. Ortiz said he first heard complaints from service members two years ago when he was chairman of the Assembly's Veterans Affairs Committee. The assemblyman said it made sense to effectively put any questions about permanent custody status on hold until military personnel return to New York and can contest custody disputes, if they are to occur, fairly.

Views on the Bill

From the standpoint of a Guard member, Goldenberg called the legislation a “very good bill.” Added the lieutenant colonel, “A number of states have taken similar actions to help protect the rights of their service members in their national guards.”

In January, an Appellate Division, Third Department, panel upheld a female National Guard member's loss of primary custody of her son following her stint in Iraq in 2004 and 2005. Diffin v. Towne , 47 AD3d 988 (2008). While Tanya Towne's deployment in and of itself did not constitute a change of circumstances that would warrant a modification of custody in favor of her boy's father, the court there stated, “[W]e must consider the consequences of her extended absence in determining whether such a change exists.”

The Legislation

The bill signed by Mr. Paterson extends custody status protections for active-duty military personnel established in a 2003 federal law, the Sevicemembers Civil Relief Act, according to Albany military family law attorney Greg T. Rinckey. The federal law prohibited default judgments in child custody cases against active-duty personnel and allowed service members to seek a stay of a proceeding based on their deployment status. Amendments proposed in an appropriations bill introduced in Congress in late August that are nearly identical to those in the legislation approved by Mr. Paterson have yet to pass, Rinckey said.

“I think this is great,” Rinckey, a partner in Tully, Rinckey & Associates, said of the new law in New York. “For service members that are deployed, this is the last thing that should be on their minds.”

Rand R. Timmerman, a solo practitioner in Watertown, Jefferson County, said the judges he appears before in northern New York recognize the protections for military personnel in the federal Servicemembers Civil Relief Act and have tried to encourage parties in custody cases to work together when deployment is imminent. “My experience has been that judges have been very, very good about that,” Mr. Timmerman said in an interview. “If it is a custody matter, most of the time the lawyers will work out something with the person being deployed, they'll make sure they can see the kids as much of the time before they go and toll it [the temporary order] so when they come back, any issues of visitation and custody are being put on the table.” Mr. Timmerman, a family law specialist, said a third or more of his caseload typically involves military personnel or their families. Watertown is about 10 miles from Fort Drum, home of the U.S. Army's Tenth Mountain Division.

While Mr. Timmerman said the new law created by Mr. Paterson is welcome, he said the governor could aid military family law practitioners even more by finding a way to have Family Court orders issued in New York uniformly enforced in other states. When military personnel are deployed from New York, their families often go to live with friends or relatives in other states, often making the orders issued by New York courts unenforceable, Mr. Timmerman said. “That's a huge problem,” he said.

Conclusion

In a brief memo to Gov. Paterson's office about A8722/S5860, the Office of Court Administration said it was not opposed to the legislation and that the bill would have a minimal impact on the operations of the courts. The bill will take effect on March 24, 2009.

Joel Stashenko is the Albany Bureau Chief for the New York Law Journal, an Incisive Media sister publication of this newsletter.