Stripping soldier of primary custody while in Afghanistan a no no

On behalf of Law Office of Ann A. Thomson, A Professional Law Corporation posted on Tuesday, January 15, 2013.

Most child custody situations really do involve two good parents that love their children, which is why California family courts want to favor joint custody in these situations. Even when joint custody is granted, one parent is often deemed to have primary custody in terms of decision-making power. This power allows them to make major decisions involving the child’s care, including educational ones.

This decision-making power was recently stripped from a soldier while he was deployed to Afghanistan. Although no changes were made in terms of joint custody, the mother petitioned for permission to change the school where their child was enrolled to one in a different city. When the judge granted this, it went against the father’s wishes while he was not there to represent his interests. When the father returned, he appealed the decision and the Fourth District Court of Appeal agreed, reversing the ruling that was made while he was on active duty.

The situation began in 2001 when the two parents decided to divorce. A custody agreement was drawn up in regards to their 1-year-old child. This agreement granted the parents joint physical custody, but gave the father primary custody. In 2005 the parents no longer lived in the same area, the father was then granted primary physical custody as well when he wanted his son to attend school near his military base. This ruling was renewed each of the next two years.

It wasn’t until he was deployed that things changed. The father and the courts agreed that the mother would have primary physical custody while he was overseas, but the father was to retain the decision-making power and primary physical custody was to be again granted upon his return. It was while he was away that the family court ruled that the mother could remove the child to a school closer to her. Then, when the father returned the court ruled that she could retain primary custody and allowed a doctor to testify that ultimately it was the better option.

Legislation was enacted at some point during the dispute that said that a court could not review custody of the child based on active duty. The only exception would be if there was proof that the service member suffered from some disability such as post-traumatic stress disorder and that the disability affected their ability to care for the child. It is not sufficient to simply have a diagnosis, but that the inability to care was obvious.

Source: Oceanside-Camp Pendleton Patch, “Deployment Shouldn’t Deprive Soldier of Child Custody, Court Rules,” Jan. 3, 2013

From offices in Seal Beach, the Law Office of Ann A. Thomson serves clients throughout Southern California in communities such as Seal Beach, Santa Ana, Brea, Yorba Linda, Fullerton, Corona Del Mar, Costa Mesa, Newport Beach, Irvine, Laguna Beach, Dana Point, Mission Viejo, San Clemente, San Juan Capistrano, Anaheim, Fountain Valley, Garden Grove, Long Beach, Huntington Beach, Norwalk, Torrance, Rancho Palos Verdes and Los Angeles.
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