In Iraq, our armed forces know the dangers. But few realize that military duty may cost them custody of the kids they left behind.
“The officer said, ‘Please hold, there are some things I need to tell you,'” Hayes recalls. “I was probably waiting for just moments, but it felt like forever. I thought I was going to throw up. He finally came back to the phone and said that Tim and his girlfriend, Brenda Brown, had had several altercations at their house. Tim had been very belligerent, and Brenda had duct-taped him and beat him up. The officer, Ryan Quimby, was checking on Brystal daily to make sure that she was OK.”
Frantic, Hayes flew to New Hampshire a few weeks later, as soon as she could get permission from her superiors, in hopes of scheduling a court hearing to get Brystal away from Knight, who had temporary custody while she was deployed. But family courts don’t run on military time, and Hayes’s two-week leave expired before she could get a hearing. A court date was finally set for March 2007, and she flew back from Iraq again, on emergency leave.
The case was cut-and-dried. Officer Quimby gave graphic testimony about the chaos in Knight’s home. Brown had already pleaded guilty to domestic assault, and Knight even admitted that he’d once hit Brystal. Hayes walked out of the courtroom with a temporary custody order. She had won, but without any close friends or family who could take care of the girl, she had to choose: fulfill her duty to the Army — or to her daughter?
Such conflicts have increased as the population of the armed services has changed. Since the draft ended in the 1970s, our all-volunteer military has tried to retain enlistees by offering long-term career possibilities and cash incentives. They’ve succeeded — but in doing so have caused certain changes. Once servicemembers were primarily young, single male draftees; now they include more older, married volunteers — male and female — who are more likely to have kids. Single parents (divorced or unmarried) now comprise 142,319 of the 1,466,898 members of the active forces. But neither the military nor the U.S. courts has fully recognized this reality, and when problems arise with child care and custody arrangements, enlistees find themselves in uncharted legal territory that neither system is equipped to handle.
The trouble stems, in part, from a clash between local and federal law. State law covers family matters, while many military issues fall under federal jurisdiction. These two systems can be completely out of sync, with the military often seeming unaware of state-court requirements, and family courts apparently oblivious to military needs.
Hayes resolved her crisis by deciding that Brystal had to come first; instead of returning to Iraq at the end of her leave, she stayed in New Hampshire. In April 2007, she was officially charged with desertion.
Hayes spent two months living in fear of being seized while driving back and forth to her daughter’s school; then her lawyers suggested going to the newspapers, on the theory that publicity might pressure the military into finding a solution. Hayes finally agreed — though she says she felt humiliated at the idea of the press “airing her dirty laundry” — and last June she broke her story in New Hampshire’s Concord Monitor. Just after the news hit the paper, she packed up Brystal, drove 300 miles to Fort Dix, NJ, and turned herself in. The publicity tactic seems to have worked. Though her previous requests for an honorable discharge had been refused, Hayes was met that day by the fort’s judge advocate general (JAG) attorney, and they filled out the necessary paperwork, with Brystal at her mother’s side. Four days later, Hayes headed home, honorable discharge in hand, ready to start over — and figure out how to come up with $24,000 in lawyer fees.
Attorney for the New Hampshire National Guard Francine Swan declined to comment on Hayes’s case. Pentagon spokesman Lieutenant Colonel Les’ Melnyk told Good Housekeeping, “The Department of Defense cares deeply about both our servicemembers and their families. Any servicemember who is deployed and experiences family problems back home is subject to psychological stress that could decrease effectiveness on the job and undermine military readiness.”
While Hayes’s story drew attention to the growing number of custody problems of military personnel, her case was actually simpler to resolve than most. More often, the disconnect between the courts and the military puts parents in uniform at a serious disadvantage in getting their kids back. “The situation is so unfair and so serious that states need new laws to protect the rights of enlisted parents,” argues Mark Sullivan, a retired JAG colonel who is now a family lawyer in Raleigh, NC, and author of The Military Divorce Handbook.
Although nobody tracks the exact number of such cases, Sullivan has amassed a huge binder of examples — and Tanya Towne is one of them. A longtime member of New York’s Army National Guard, Towne returned from Iraq at the end of her tour to find that her ex-husband wanted to parlay temporary custody of their son into becoming the boy’s primary caretaker. And as their dispute played out in court, Towne felt that, instead of being protected or appreciated for serving her country, she was being penalized for it.