Negates the issue of military deployment as a factor in the awarding of child custody

Summary of provisions

Section One - amends Section 70 of the domestic relations law by adding a new subdivision (c) to state that the court shall not consider the past or current deployment, or possible future deployment of a parent in active service of the armed forces of the United States or of the organized militia of the state as a detrimental factor to the awarding of custody of a child where a suitable child care plan has been presented to the court by the petitioning parent.

Section Two - amends Subdivision 3 of section 75-1 of the domestic relations law to state that within thirty days of such return the child custody order in effect immediately prior to any modifications thereof pursuant to subdivisions one and two of this section shall be reinstated in full force and effect.

Section Three- amends Paragraph (a) of subdivision 1 of section 240 of the domestic relations law, to include subdivision one-d which states that the court shall not consider the past or current deployment, or possible future deployment of a parent in active service of the armed forces of the United States or of the organized militia of the state as a detrimental factor to the awarding of custody of a child to a petitioning parent where a suitable child care plan has been presented to the court by the parent

Section Four - sets forth an immediate effective date

Justification

On March 14, 2011, Senator Greg Ball, Chairman of the Committee on Veterans, Homeland Security and Military Affairs held a hearing on the current status, quality of life and health of veterans and military service members in the State of New York. The most startling and emotional testimony came from Mr. Harold Cooney, Northeast Region Liaison from the Office of the Deputy Assistant Secretary of Defense and Ms. Tanya Towne, a veteran of the National Guard, on the current custody issues facing our military service men and women.

According to testimony given by Ms. Towne at this hearing and the poignant account of her story featured in goodhousekeeping.com, she was deployed to Tikrit, Iraq with her National Guard unit in 2004. A temporary order was issued for her son to stay with his father being Ms. Towne's ex-husband. Shortly before Ms. Towne was expected to

return home her ex-husband unexpectedly filed and was granted permanent custody of their son.

When returning home from an 18 month tour guarding convoys in Iraq, away from her home and family, Ms, Towne was not greeted by her son. Her husband refused to let him attend her homecoming. Ten days later Ms. Towne appeared in court to regain custody and was denied. A custody trial was scheduled for February of 2006 and her son was ordered to stay with his father until such proceeding.

Ms. Towne withdrew money from her retirement account to pay for a lawyer and prepared to go to trial. When Ms. Towne's husband was asked why he had never fought for custody previously he admitted that until Towne went to Iraq, there were no grounds - drawing the possible conclusion that if Ms. Towne had never gone to serve her country, she would still have primary, uncontested custody of her son. In August of 2006, a Judge ruled the Ms. Towne's ex-husband provided a more stable environment and awarded him primary custody of their son.

Regardless of the financial burden, Ms. Towne continued her plight to recover the life with her son she had prior to serving in Iraq. Her appeal came before the Appellate Division for the Third Judicial Department of New York State Supreme Court in October of 2007. Ms. Towne's attorney vehemently argued it was inappropriate for the family court to use her deployment as grounds to contest a custody arrangement. On January 3, 2008, after a two year custody battle, the Judges ruled that the "consequences of her extended absence" had to be considered in awarding custody of her son. They stated that it was not in the best interest of the child to move him once again. Therefore, Ms. Towne's ex-husband was granted permanent custody.

In Ms. Towne's emotional testimony she stated the obvious - soldiers should not have to choose between serving their country and losing their family. If she had any idea that she would risk losing custody of her child she would have done anything to prevent herself from having to serve overseas for an extended period of time.

Military service members sacrifice an insurmountable amount of time away from their families for the protection of their country. It is completely unjustifiable and embarrassing that New York State would allow them to lose custody of their children based on their military service. Both Arizona and California have laws that bar a parent's deployment from being considered whatsoever in a change-of-custody hearing. In Michigan and Kentucky, the order of custody for Ms. Towne's son would have automatically expired upon Ms. Towne's return.

Pentagon officials and military-family support groups state there are no statistics on the number of military parents who have lost custody of their children following deployments - but they agree that the number is increasing. This legislation is imperative to ensure the best interests of both military service members and their families are protected. Military service men and women should be concerned and focused on the protection of our country and their safety while on duty and not have to worry that their service to this country will jeopardize their standing as a custodial parent in their child or children's lives upon return.

Legislative history

5/21/13 - Passed in Senate, A.6035A - Held in Judiciary 2012 - S 5049, Held in Children & Families, A.8550 - Held in Judiciary

Fiscal implications

None.

Effective date

This act shall take effect immediately.