By Erik Espe
When men and women in the armed services are shipped overseas to face possible death in Iraq, they find themselves unable to fight another battle: One for their kids back home.
Divorced parents who are called to serve their country in Iraq often find themselves sued by vindictive or greedy ex-spouses in family court for increases in child support or for custody of their children. For members of the Reserves and National Guard, the call to be shipped to the firing lines of Iraq -- and lose high-paying jobs back home -- can come so quick that they don’t have time to petition courts for decreases in child support.
It’s an inhuman thought: When a soldier is sent to potentially face death in Iraq, an ex-spouse takes advantage of the situation to file suit for custody of the children, when they’re in no position to fight in court. But it happens all the time, according to Michael Robinson, a lobbyist on family court issues in California.
The issues has been reported on by conservative columnists Phyllis Schlafly, Wendy McElroy, Dianna Thompson and radio show host Glenn Sacks. Yet little has been done to correct the problem.
Until now, in California, where Robinson has succeeded in leading a bill through the California Assembly and Senate, and almost certain signing by Gov. Arnold Schwarzenegger. The bill would give relief to soldiers who find themselves hit with family court issues while they are serving in the Middle East.
To date, Missouri has been the only state to pass a law to protect Reservists and Guard Members from child support arrears, as they go from high-paying civilian jobs to lower pay on the front lines of Iraq and Afghanistan.
Under family court law, child support orders aren’t reduced unless the obligor (usually the dad who is under a support order) files for a modification of the order. This can take months.
But Reservists and Guardsmen sent to Iraq don’t have months to prepare for the move (or the lower-paying job they will have on the front lines). Unable to change their orders until they get back a year or more later, they sometimes return home to face arrest for child support they can’t afford to pay. Or they discover they no longer have any access to their children, because of a family court hearing initiated by a vindictive ex-spouse, one they were unable to attend while they fought for their country.
Legislation to protect troops from vindictive or greedy ex-spouses was introduced two years in a row in Illinois, failing both times. There is also legislation pending in New York that appears to be headed for defeat, and Michigan was denied having a bill even being introduced this year.
But things are surprisingly much different in supposedly left-leaning California.
The bill Robinson helped shepherd, SB 1082, was authored by Senators Bill Morrow and Denise Ducheny, along with 28 co-authors from both houses. The bill enjoys bi-partisan support. It passed out of every committee and the senate floor by unanimous consent, with only the Assembly floor vote remaining. The bill is much more comprehensive in its protection than any other legislative attempt in that it also protects individuals with current custody orders in addition to fair child support protection that does not punish an activated or deployed parent who can no longer exercise their parenting time.
In April 2004, Robinson worked with Stan Diorio, the former chief of staff for Assemblyman Rod Wright, to shop the concept of the legislation around the state capitol. The election of Gov. Schwarzenegger gave the bill greater hope of passage, because in the past Gov. Gray Davis had been strictly opposed to any legislation that gave any kind of relief to child support obligors. (Davis even vetoed legislation that would have benefited support obligors who have been falsely identified as fathers of children that were not biologically theirs), which also affected many military members. Robinson and Diorio were successful in 2004 when Gov. Schwarzenegger signed AB 252 Jackson/Ashburn, Paternity Fraud into law.
According to Robinson and Diorio, the bill could have been even more comprehensive had it not been for problems with federal law that restrict the extent of protection a state can offer. Because of the Bradley Amendment, a federal law designed to strengthen the child support system, a child support order can only be modified retroactively to the date of a filing of a petition. Should a Guard Member or Reservist with a child support order not be able to file a petition for a reduction in their monthly child support amount, before they are deployed (and have their pay lowered as servicemen forced to leave jobs back home), they can return with arrearages, penalties and interest that cannot be forgiven.
In one famous case from the first Gulf War, a hero returned home after being held hostage, and was thrown in jail because he couldn’t pay child support while he was being held by terrorists in the Middle East.
The average activation and deployment time is 7-10 days in California, with some as short as 72 hours. Robinson, Diorio and others fear that some members of the Armed Forces will still fall through the cracks. California has traditionally been the trendsetter in family law policy, and Robinson and Diorio are hoping that SB 1082 will be no different. They hope to drive the bill nationally.
With approximately 110,000 Guard Members and Reservists in California alone, there is no question about the need to address this across the country and insist that Congress move to amend federal laws that affect our family law courts. Robinson has brought the problems facing military parents and spouses to the attention of Congressmen Duncan Hunter and Wally Herger, both chairs of key committees in the position to move to correct the problems, in addition to others including the Senate members. Herger has agreed to hold hearings on amending Bradley, according to Robinson.
SB 1082 wasn’t the only bill introduced in California to address military family law problems. Assemblyman Ray Haynes had introduced additional legislation: AB 498, a child support bill, and AB 265, a child custody bill, Haynes is also a co-author on SB 1082. Haynes had offered his bill AB 265 child custody for an amendment to correct another egregious problem facing military parents, their children being hijacked to other countries after a parent is deployed. One such case that has been reported on is that of Lt Gary S who had his son hijacked to Israel after he was deployed to Afghanistan shortly after 9/11. Had it not been for a deceiving spouse and lapses in law Gary wouldn’t be out over $100,000.00 in legal cost fighting his case both here and in the Israeli courts. There are 3 individuals in Gary’s unit alone who have been left unprotected.
According to Robinson, all efforts were made to try and amend AB 265 to correct the problem and assure that jurisdiction of children in custody matters would remain within the United States and preferably the state, which a member is deployed from as a resident. Robinson say’s that after looking at all avenues to correct it at the state level, it was determined that even if a bill was passed it could very well cause (conflicts in laws) jurisdictional problems between California and other states without correcting the problem in federal law.
Robinson and other supporters of the legislation are troubled the problem isn’t being addressed in other parts of the country at the level it is in California.
“These men and women in our military are going into harm’s way to cover our backs and the least we can do is cover theirs,” Robinson says. “There is no danger for us to do so. For them, it’s their life at stake. We can’t let special interests get in the way, or allow politics to dictate or impede elected officials at all levels from doing the right thing. We have to act now, not later.”
To Robinson, the family law issue may even be having an impact on military enlistment. There is nothing quite as demoralizing as enlisting, then having a child support order hiked up or losing your children while you’re serving your country overseas.