Senate Passes Bill to Protect Soldier’s Custodial Rights

The Iowa Senate passed a bill Tuesday that would help prevent Iowa soldiers from losing custody of their children because of their active-duty service. Senate File 2214 would protect Iowa Guard members’ and Reservists’ custodial rights during periods of federal activation. The bill would allow a court to order a temporary change of custody only if there is “clear and convincing evidence” that that would be in the best interest of the child. The Senate passed the bill 49-0 and now moves on to the House

“The bill helps give our soldiers a sense of security that things will be the same when they return,” Sen. Steve Warnstadt, D-Sioux City, told the Iowa Independent. Warnstadt, a current member of the Iowa National Guard who served in Operation Desert Storm as part of his active-duty commitment, knows that a lot of things can change during deployment that soldiers can’t control. He wants to ensure they aren’t forced to give up authority when it comes to the things they should have some control over.

Warnstadt also said the bill will help provide soldiers faced with the prospect of deployment a sense of security with regard to maintaining custody of their children. “I have received some e-mails from people who served in the Guards or Reserves but quit out of fear as to what may happen to their custodial rights if they were deployed,” Warnstadt said.

The bill also stipulates that once the parent returns from service, the court would have to reinstate the custody order that was in place just before active duty. Moreover, a parent’s absence due to active duty could not be used against him or her in future custody proceedings.

“I’m concerned that we’re putting people in situation where they are choosing between serving their country and keeping their kids,” Warnstadt said. “There’s a lot of uncertainty involved with being deployed, and I’m also concerned that some service members will be distracted, which may cause a life-threatening situation for themselves and those around them.”Warnstadt also said the bill will help provide soldiers faced with the prospect of deployment a sense of security with regard to maintaining custody of their children. “I have received some e-mails from people who served in the Guards or Reserves but quit out of fear as to what may happen to their custodial rights if they were deployed,” Warnstadt said.

The bill also stipulates that once the parent returns from service, the court would have to reinstate the custody order that was in place just before active duty. Moreover, a parent’s absence due to active duty could not be used against him or her in future custody proceedings.

“I’m concerned that we’re putting people in situation where they are choosing between serving their country and keeping their kids,” Warnstadt said. “There’s a lot of uncertainty involved with being deployed, and I’m also concerned that some service members will be distracted, which may cause a life-threatening situation for themselves and those around them.”

The bill, highlighted by a case in Iowa, was drafted in response to cases across the country that have prompted a few states such as California, Kentucky and Michigan to amend their laws to stipulate that soldiers’ deployments cannot be used against them in child-custody disputes.

Military and family law experts don’t know how big the problem is, but 5.4 percent of active duty members — more than 74,000 — are single parents, the Department of Defense reports. More than 68,000 Guard and Reserve members are also single parents. Divorce among military men and women has also risen in recent years, with more than 23,000 enlisted members and officers divorcing in 2005.

The Iowa case involves Iowa National Guardsman Michael Grantham, of Clarksville, who lost primary physical custody of his two children when he was called to duty in 2002. He arranged to have his daughter, who was 8, and his son, who was 13, live with his mother while he was on active duty.

But while Grantham was ordered to active duty stationed at Fort Knox, Ky., his ex-wife, Tammara, asked a judge to grant her custody of the kids and won. Upon returning from active duty, the court’s ruling prevented him from stepping back into his previous role as the primary parent for his children, and he lost an appeal of the case.

However, the new bill may have not made a difference for Grantham, whose attorney requested a stay of proceedings until he returned to civilian status, citing the Soldiers and Sailors Civil Relief Act (SSCRA). The Iowa Supreme Court rejected his plea, noting that the SSCRA does not mandate a stay in every case involving a parent who is called to active military duty. “To warrant a stay under this legislation, it must be determined that substantial rights of the absent serviceman will be prejudiced if the effort to postpone the proceedings is denied,” the Court observed in its opinion.

Moreover, the Iowa Supreme Court upheld the district court’s finding that Grantham concealed the arrangement for his mother’s custody of the children pursuant to a military family care plan until it was too late for Tammara to seek judicial relief before he was called to active duty.

“Grantham’s case had some idiosyncrasies that I’m not sure about. Apparently he didn’t abide by his family-care plan and didn’t do all the things required on his end,” Warnstadt said. “The bill is not a carte blanche for service members. They have certain responsibilities and obligations they need to fulfill in order to be protected. It provides the certainty for soldiers and their families that, if they follow all the proper procedures on their end, they are going to return home and retain custody of their kids.”