May 5, 2013 by Robert Franklin, Esq.
I’ve said it before and I’ll say it again: when it comes to fathers in family courts, you can change the law, but you don’t necessarily change the result. One example is the change in the Oregon custody statute in 1997. It was designed to lower the incidence of sole custody ordered by family court judges. It did no such thing. My belief is that judges awarding almost 90% of custody to mothers year in and year out despite decades of social science showing children do better in shared custody has more to do with pro-mother bias than with laws. All custody statutes provide judges the leeway to exercise that bias and often they do whether knowingly or not. Last year I wrote about the astonishing case of the Michigan man who was a stay-at-home father and moreover one whom no one ever claimed was anything but good and loving toward his son. He lost custody and the referee who made the initial decision stated in open court that he just couldn’t wrap his mind around the concept of a stay-at-home father. Of course if the sexes had been reversed, there’d have been no thought of denying custody to the mother.
Still, not all laws are alike. Custody laws are necessarily flexible and open to interpretation. Not so the California statute on the parental rights of members of the armed services when they’re deployed overseas. That law (that the National Parents Organization, then Fathers and Families, was instrumental in passing) states clearly that the overseas deployment of a member of the armed services shall not in any way prejudice his/her parental rights. If a parent is deployed, a court may alter custody during the deployment, but once the parent returns, custody is to revert to what existed prior to the deployment unless the child’s best interest demand otherwise.
The law further states that “It is the intent of the legislature that this section provide a fair, efficient and expeditious process to resolve child custody issues…” in the event of deployment.
In other words, California law requires that, when a service member returns from deployment, parental custody shall return to its pre-deployment status unless it’s not in the child’s interest for it to do so. And the process for returning to that earlier status shall be accomplished quickly.
In the case of EU (the father), JE (the mother) and SU (their son), none of that was done. But that’s the good news; in fact what the legal system did was far worse than just ignoring the plain words of the law.
SU (I’m using initials because the father asked me to preserve the privacy of his son) was born in 2000. EU and JE were divorced a year later. In 2006, a family court issued a formal, written custody order giving the parents joint custody, but giving EU physical custody of the boy. The order stated that this custody arrangement was in the boy’s best interests. Aware that EU was a member of the armed services, the order anticipated his possible deployment by stating that “if military deployment should require either parent to leave California, the parent remaining in California should assume the role of primary parent, with a return to the established parenting plan upon the return of the deployed parent to California.”
It was a belt-and-suspenders approach. EU figured he was protected by the law that required reversion to his primary custody when he returned from any deployment and he also had the court’s order as back-up. In the event, neither the law nor the court order prevailed against the biases of a family court judge.
Sure enough, in the summer of 2009, EU learned that he would be sent to Afghanistan in November for a little over eight months. JE went to court for a change of custody and EU duly informed the judge of his deployment.
In August of 2010, EU was released from active duty and immediately sought a court order reverting custody to him pursuant to the statute and the 2006 custody order. It took seven months for Judge Michael McCartin to even hold a hearing.
Representing himself, EU argued that the Legislature “did not intend that every time someone goes overseas to fight for their country they should have to come back and then try to establish that they’re a good parent all over again.” That of course was exactly correct. The entire point of passing the law in the first place was so returning service members would not have that onerous obligation. And of course that was the clear import of the 2006 court order.
I’d like to say that Judge McCartin ignored both, but he didn’t. He was well aware of the statute, and admitted as much numerous times on the record. What he didn’t do, however, was comply with it. Put simply, it is now May of 2013, and EU has not yet regained the custody of his son that the law and the 2006 court order guarantee to him.
Over seemingly endless months, Judge McCartin ruled that, in precise opposition to the explicit terms of the law and the 2006 order, what was required was “an initial custody case again.” He stated in open court that the Legislature demanded an expeditious process, which he declined to provide. Indeed, having decided that EU’s was a brand new custody case, despite the fact that the matter had long before been decided, Judge McCartin went on to appoint a mental health professional to evaluate the parents for the purposes of custody.
EU protested and Judge McCartin said he “felt bad” about the unconscionable delay, but went ahead with the entirely unnecessary plan that frankly contradicted existing law. Just to gild the lily, he actually blamed EU for the delay claiming that the man hadn’t informed the court about his deployment prior thereto. That of course was simply a lie. EU had not only presented his deployment plans to the court in writing, he’d included a letter from his superior officer attesting to them. McCartin didn’t care.
Meanwhile, the mental health expert had completed her evaluation, found that both parents were perfectly fit, that there were no changed circumstances from the date of the original order and promptly recommended that JE, not EU, have custody. By then it was February of 2012, over 17 months since EU had returned from Afghanistan.
As a final indignity, Judge McCartin found that the length of time that had elapsed meant that EU couldn’t have custody. That’s right. The judge intentionally and admittedly violated the law’s requirement that the reversion process be handled expeditiously. He ignored the law’s plain requirement of reversion to pre-deployment custody status. He ignored the 2006 court order providing for the same. Having done all that, he once again violated the court order and the statute by giving custody to JE and he did so because the entire process had taken so long, a fact that was entirely his doing.
Does bias get any more obvious than that? If he’d just announced that he never gives custody to fathers, it would have saved time and heartache.
EU appealed and the appellate court made short work of Judge McCartin. It held that he should have ordered reversion to the pre-deployment custody status pursuant to the original court order of 2006, a fact that should have been obvious at the outset. That happened on the last day of last year. EU told me recently that the California Supreme Court refused to overturn the appellate court, so the issue has been finally (finally!) decided.
At the latest, EU will regain custody at the end of this school year.
Is this a victory? EU went overseas to serve his country for barely over half a year and the family court system seized on that to violate its own laws, ignore its own orders and force a child into the middle of a tug of war that has now lasted almost three years. It shouldn’t have happened at all.
Yes, a father won in court. Soon he’ll have the custody he should have had all along. But when statutes are so clear and unambiguous and it still takes almost three years of heartache and legal wrangling to enforce them, what is the real result?
The result is harm to a child. The result is a legal system that disgraced itself. The result is an unqualified demonstration of anti-father bias. The result is an insult to our military personnel.
Who’s the “winner?” Anyone?
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