Posts tagged ‘Family Law’
By Jeffery M. Leving & Glenn Sacks
Laws granting deployed soldiers special protections against civil legal actions date back to the Civil War. However, few of these protections extend to family courts and family law. As a result, military men’s service to their country often creates the conditions under which they can become victims of terrible injustices. As America’s military commitments in Iraq and Afghanistan persist, it is important to address the family law issues which military men and fathers face.
Some military men’s service costs them their children. The Uniform Child Custody Jurisdiction and Enforcement Act provides that if a parent moves a child to a new state, that new state becomes the child’s presumptive residence after only six months. Because a normal military deployment is six months or more, if a military spouse moves to another state while her spouse is deployed, by the time the deployed spouse returns the child’s residence has been switched, and the spouse who moved the child is virtually certain to gain custody through the divorce proceedings in that new state.
The restrictions on military personnel’s ability to travel, the high cost of legal representation, and the financial hardships created by child support and spousal support obligations make it difficult for returning service personnel to fight for their parental rights in another state. Many struggle to even see their children, much less remain a meaningful part of their lives.
To solve the problem, the federal Servicemembers Civil Relief Act of 2003 (SCRA) (formerly known as the Soldiers’ and Sailors’ Civil Relief Act) must be amended to specifically prohibit the spouses of active duty military personnel from permanently moving children to another state without the permission of the active duty military spouse or of a court. In addition, the UCCJEA needs to be modified to state that the presumption of new residence does not apply if the children are taken in this wrongful fashion.
Another family law problem for military fathers is paternity fraud. According to Carnell Smith, Executive Director of the National Family Justice Association, deployed soldiers are often “targeted and preyed upon” by unscrupulous “father shoppers” who falsely designate absent military men as the fathers of their newborns. He says:
“The military provides a steady, easily garnished income as well as medical care for the baby. It’s hard to contest paternity when you’re thousands of miles away and losing a good chunk of your income to child support. Sometimes the guy ends up on the hook for 18 years of child support simply because he served his country.”
Several states, including Illinois, Georgia, Maryland, and Ohio, have addressed the problem through legislation which allows putative fathers more time and greater judicial flexibility to challenge paternity findings.
A third family law problem exists for fathers who serve as reservists and who have child support orders. Support orders are based on civilian pay, which is generally higher than active duty pay. When called up, a reservist sometimes pays an impossibly high percentage of his income in child support, which hurts his current family. Because those who fall behind in child support are charged stiff interest and penalties, a returning reservist may spend years working to pay off arrearages incurred during his service overseas. Worse, some could even face arrest and incarceration.
Normally when an obligor loses his job or suffers a pay cut he can go to court and request a downward modification. However, since reservists are sometimes mobilized with as little as one day’s notice, few are able to obtain modifications before they leave. These soldiers cannot get relief when they return home because the federal Bradley Amendment prevents judges from retroactively forgiving support.
The solution is legislation like Missouri’s, which requires that reservists’ support obligations be automatically adjusted when they are called up for active duty. The Illinois legislature is currently considering a bill to address this issue.
Navy veteran Taron James, who has joined with 600 other victimized veterans and their families to form the activist group Veterans Fighting Paternity Fraud, believes the injustices caused by current domestic relations law constitute a breach of faith with military men and fathers. He says:
“It’s understood that when soldiers go off to serve they shouldn’t have to worry about being taken advantage of while they’re absent. Some of the guys making sacrifices abroad while being put through the ringer here at home must be wondering why they bothered.”
Glenn Sacks’ columns on men’s and fathers’ issues have appeared in dozens of America’s largest newspapers. Glenn can be reached via his website at www.GlennSacks.com or via email at Glenn@GlennSacks.com.
Jeff Leving is one of America’s most prominent family law attorneys. He is the author of Fathers’ Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute. Visit his website at www.DadsRights.com.
By Sylvia Galic
Most of us recall the days of first year law school with a combination of fondness and misery. We entered a world comprised of theorems, logic, and proofs, and were introduced to bizarre and fascinating terms such as Learned Hand and eminent domain.
We were also taught to read case law, which was really a different language, something foreign that, at the time, made no sense. Most memorable, perhaps, is the case of International Shoe Co. v. Washington (326 U.S. 310).
In the community of family law, such jurisdictional barriers do not come to light often. I recently had a case, however, that required me to revisit good ole’ International Shoe, and its sister, the Long Arm Statute (735 ILCS 5/1-205.1), the familiar and powerful statute that either pulls you in, or insulates you from the inevitable. This case dealt with the issue of an out of town domiciliary/spouse, and his alleged submission to the jurisdiction of Illinois, and the powers of personal jurisdiction. While many attorneys are familiar with terms such as “minimum contacts,” “availing oneself to the benefits of a forum State,” and “traditional notions of fair play and substantial justice,” we rarely hear them mentioned on the sixteenth floor of the Daley Center Court House.
However, what occurs when a nonresident spouse whose wife and minor child, who have resided in Cook County for at least two years, refuses to submit to the jurisdiction? Well, as attorneys, we then plunge forward and try to establish these “minimum contacts,” and demonstrate to the Court that the nonresident spouse has “availed himself/herself” to the benefits of the State of Illinois.
In my particular case, the opposing party filed a Motion to Dismiss pursuant to the Long Arm Statute. Upon reading and rereading, the Long Arm Statute, I realized that since the nonresident spouse never lived in Illinois, owned no property in Illinois, never committed a business transaction in Illinois, et al, this task might not be so easy.
However, one of the paragraphs became demonstrative, which stated that “any person,
whether or not a citizen or resident of this State, who in person…fails to support a child, spouse, or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State.”
The legislature clearly intended this provision to serve as an important public policy tool to insure that a noncustodial, nonresident provide support for his or her family, and thus be enshrouded under the umbrella of the Long Arm Statute. We were successful in obtaining personal jurisdiction over the spouse, and obtaining a temporary child support order, after two years of little to no support by this parent and the elation of my client. However, the nonresident spouse has since become more of a nonresident, by relocating to his Country of birth, India, which is a non Hague Convention signatory country. Thus, the battle for support continues.
American Society has declared war on crime. All wars generate collateral damage and, in this case, the damage consists of families of those who bear the burden of the public’s wrath with crime. This is particularly true of the most vulnerable and defenseless members of society – the children of imprisoned men. These children, through not fault of their own, are often denied spiritual and emotional nurture by their fathers. Never forget: incarcerated fathers are parents, too. Fathers are not “social accidents” as many people have been incorrectly taught due to negative male-stereotyping.
As an advocate for fathers’ rights for over two decades, I’ve long understood that positive father involvement is vital to the stability of our society because fatherless children pose a high risk for addiction and crime, as documented in my book “Fathers’ Rights.” Children are the future of our society, and this is no less true of the children of incarcerated men. Children of incarcerated parents should not be abondoned. Their positive parental relationships require support to break the cycle of criminality caused by father absence. The most reliable predictor of crime is neither poverty nor race, but growing up fatherless.
Several years ago I represented an incarcerated father I will call Bob. Bob became embroiled in a divorce and visitation dispute that was as bitter as it was high-profile. Yet I was able to reunite him with his children and keep him connected to them while incarcerated. This required aggressive and strategic litigation on my part, but it was worth it. I pursued visitation for Bob and did not give up until he had it. The court even ordered specific dates and times for phone visitation. Upon release, he was reunited with his family.
Obviously, visitation is more difficult for incarcerated fathers. However, it is possible. Often a letter from a law office motivates reluctant caregivers to let fathers back into their children’s lives so bitter legal battles can be avoided. But, sometimes they are necessary. My goal is never to use the law to make mothers’ lives miserable, but to maximize positive father contact for the child. In Bob’s case, I had to fight hard. Successful litigation kept this father connected with his kids and he lives with them now.
A critical reason for maintaining visitation, even if only by phone, is to attempt to prevent the possible termination of parental rights. One possible problem for incarcerated fathers is the threat of court-ordered termination of parental rights in an adoption. Failure to write, telephone or otherwise communicate or take an interest in his children can constitute a basis to attempt to terminate those rights. This sets the stage for adoption of his children.
If you feel your parental rights may be threatened, familiarize yourself with the laws of your state and, if it becomes necessary, find a family law attorney in your state to protect those rights. More importantly, make sure you educate yourself in the art and craft of parenthood. The law can be hard on incarcerated dads; it’s harder on those who give up.
I believe many incarcerated men are ready, willing and able to contribute to their children’s lives. There is a significant social cost to a narrowly punitive policy, which may not take account of the needs of the children of incarcerated fathers. If we recognize and change this policy, we may achieve a reduction of crime without requiring new taxes by simply promoting positive father-child involvement.
And in a similar vein, incarcerated fathers need to understand and protect their parental legal rights. Incarcerated fathers are parents, too.
Jeffery M. Leving is one of this country’s leading family law attorneys and the co-author of the Illinois Joint Custody Law. His book, “Father’s Rights” on which these columns are based, is regarded as a definitive work on this important subject.