September 12, 2013 by Robert Franklin, Esq.
This case made the news, mostly because one of the parents is in the National Guard and she claimed the family court judge denied her custody because of her various deployments (The Independent, 8/31/13). And here’s the opinion of the Nebraska Court of Appeals. I think it’s a good thing for the news to cover issues of service in the military and its effects on child custody, notwithstanding the fact that, in the case reported on, the judge clearly made the right ruling.
More importantly, this is exactly the type of run-of-the-mill custody cases that fairly scream for a presumption of equal parenting. Under existing law, the judge made the correct decision. The only problem is that the law is wrong. The facts of the case aren’t exceptional. There are no abductions, no violence, no sex abuse, no crazy behavior by either parent. And that’s the point. Even in a case in which both parents are found to be fit and loving, one loses out and, in the process, so do the kids.
Nebraskans Colby and Danelle Collins were married in 2003 and had two children, Callie in 2005 and Tyler in 2008. Colby has been a branch manager and loan officer for a bank for over 17 years while Danelle has held a variety of jobs, mostly in the construction industry. She’s also a member of the Air National Guard as a jet engine mechanic. That was true throughout their marriage.
By 2010, their marriage was on the rocks and they sought a divorce. During the divorce and custody proceedings, the two entered an agreed temporary parenting plan that was approved by trial judge James Livingston. It called for Danelle to have primary custody and Colby to have the children 145 days out of the year.
But at trial, both Colby and Danelle sought custody of the children. Judge Livingston weighed the two claims and awarded custody to Colby. Danelle appealed that ruling, but it was upheld by the Court of Appeals.
On the face of the record, it looks like the right decision; Colby does seem to be the better, more stable parent. Of course the two disagreed on just who had done what for the children. Danelle testified that she’d done the lion’s share of parenting and Colby said he’d done his share and that Danelle wasn’t telling the truth.
And it turns out that Danelle had fudged the facts a bit. For reasons no one seems to know, she told Colby that one of her two-week training deployments was in Virginia when in fact it was in Texas. Plus, she’d agreed with Colby early in their marriage that, once they had children, she’d discontinue her military service, but secretly re-upped in 2006.
And, within 30 days of their separation, she’d already begun a romantic relationship with her boss in Kearney, NB. She took the kids and a teen-aged baby sitter, Sadie, for overnights at his house and at one point there was a party at which Stacey was given alcohol to drink, which she did.
Danelle had weekend deployments to Lincoln, NB too, but she elected to have Sadie care for the children rather than notifying Colby.
Danelle had a conviction for DUI.
The testimony of the two disagreed on several issues. Danelle claimed that Colby’s animus to her deployments was because he “hated the military,” but Colby pointed out that his father had served in the Air Force. He said his only opposition to her service came because she couldn’t be there for the children and didn’t allow him to have them when she was on duty.
After the divorce, Colby remained in the marital home in Grand Island, NB, while Danelle intended to move to Kearney, 50 miles away, where she worked and her new partner lived.
On the basis of that, Judge Livingston found that both parents were fit and loving, but ordered Colby to have primary custody and Danelle to have visitation. He did so based on the various statutory requirements of Nebraska law. Those included the relationships between each parent and the children, the health and welfare of the children, any credible allegations of abuse, the moral fitness of the parents, etc.
In giving custody to Colby, the court relied on Danelle’s preference for a teen-age baby sitter over the children’s father for care when she was deployed. Judge Livingston also criticized Danelle for her general lack of credibility in describing her and Colby’s relationships with Callie and Tyler. Finding that Colby offered a more stable environment for the children, the judge issued an award giving Colby primary custody.
As I said, given the facts and the law, Judge Livingston did the right thing. From the Court of Appeals’ review of the record, it looks like Colby was indeed the more stable, reliable parent.
So how does that merit Danelle’s being kicked to the curb as a visitor in her children’s lives? Read the opinion of the Court of Appeals and assume the worst about Danelle. Assume everything Colby said about her is true. Now ask yourself if that behavior warrants losing your children in the way so many fathers do? Remember, non-custodial parents tend to become non-parents in their children’s lives. They become “Disneyland Dads,” or, in this case, moms.
It’s true that Danelle has not been the best of parents, but is that what it takes to get a role in bringing up your kids post-divorce? Few parents are the best and in most relationships, one parent tends to be better or at least more hands-on than the other. It’s the whole point of equal parenting laws that those types of trivial differences shouldn’t decide whether children say ‘good-bye’ to Daddy or Mommy because the two can no longer live together.
That’s the point of equal parenting because we know that children like Callie and Tyler don’t care that Mommy lied about being in Texas or that the baby sitter drank alcohol one time. Their deep bonds with Danelle didn’t arise from things like that and won’t be dissolved by things like that, either. Danelle looks to be a somewhat flawed individual, but that doesn’t mean her children don’t love and need her.
But the law doesn’t encourage judges to order equal parenting. That’s why groups in Nebraska have been pushing for reform that would require a presumption that both parents are equally important to children. In the Collins case, they clearly are and Callie and Tyler shouldn’t have to suffer.
Judge Livingston made the correct ruling; it’s the law that’s flawed.
Danelle’s claims that she was denied custody because of her military involvement are plainly wrong. Yes, her deployments made scheduling childcare difficult, but nothing in Judge Livingston’s order suggested that he denied her custody solely because she served in the military.
And that’s what the Nebraska statute requires. The law says that military service shall not “by itself” justify making or modifying an order of child custody. Clearly, Judge Livingston relied on several factors in making his ruling and Danelle’s military service and deployments weren’t among them. So again, the judge’s order was correct.
But the Nebraska statute looks like a fig leaf to cover the legislature’s failure to be more protective of military parents. It looks like a law that’s designed to tell members of the armed services that “we did something to protect your parental rights,” when in fact it did little or nothing. After all, how likely is it that a judge will deny custody to a military parent or alter his/her access to a child solely on the basis of military deployment or other obligations? When will that be the only consideration?
The answer is probably never. There will always be other considerations, so the law, as it stands is toothless, without effect. To truly protect military parents, the Nebraska legislature needs to strengthen the statute to bring it more in line with California’s. That law requires that custody arrangements will return to their pre-deployment status once a service member returns.
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