Friday, September 26, 2014

Active Military Duty Mom Loses Custody via Court of Appeals

Here is a tough choice: to serve your country through military service, or to continue being the primary care provider for your preschooler.  That is the decision a Wayne County mother had to make recently as she contemplated her options in family court.

In 2007, the Child Custody Act was amended by our state legislature to protect active military parents.  The amendment to the statute states in relevant part:
If a motion for a change of custody is filed during the time a parent is on active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.
In the Wayne County case, father filed a motion to change custody in response to mother's intent to change her domicile to another state; the state where she would eventually begin her deployment with the U.S. Army.

Hearings were conducted in the Wayne County Family Court which resulted in the family court judge ruling that father should have "temporary physical placement"; a new phrase in our custody parlance.  Apparently, the Court of Appeals agreed, finding in Kubicki v Sharpe that the dispute hinged on precisely when Mother's "active duty" commenced.

Does "active duty" mean: upon enlistment; upon commencement of basic training; or upon deployment?  The intermediate appellate court took a pass on deciding the meaning of this term in the Child Custody Act by ruling that father's custody motion was filed prior to mother's enlistment.

We here at this blog think it a shame that this decision was not made with better clarity.  An excellent opportunity was lost that could have provided some much needed certainty for those willing to serve our country through the military.

Clear as mud, the Court of Appeals took the opportunity to remand the case back to Detroit so that the family court judge could ascertain the child's reasonable preference.

Collateral note: the case is also instructive for language that the moral fitness of the parties, a custody factor in the Child Custody Act, does not include the moral fitness of one of the parties spouses, in this case, mother's husband who was recently convicted of domestic assault against the mother.

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3 comments:

Gerald Vonberger said...

As sad as that is, I'm not sure how they can assure the care of the child if the mother is on active duty. Divorce is a tricky thing and sometimes it doesn't work out the way we would hope. I think they made the right decision in this case. Hopefully she can get custody when she goes off active duty. Her divorce lawyer should know what to do. http://www.robertelong.com/Legal_Services.html

Sara Welsh said...

Divorce is something that's awful. My husband and I just decided to divorce, and it's been the hardest thing to go through alone. It's been hard going to court and battling things out. I think it's been even harder because I haven't had an attorney that's on my side, but I think I'll be hiring one next week!

Sara Welsh | http://www.stringam.ca/practice/family-and-divorce/

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