G.L. man says Iraq duty cost him custody of son
Mother disputes claim in case seen as trend
By Stacey Range
Lansing State Journal
Army National Guard Spc. Joe McNeilly hasn't been the same since he returned from Iraq in March.
But it's not flashbacks to explosions and injured soldiers that haunt him most. It's that he lost shared custody of his 10-year-old son while he was serving his country.
"You want to make a soldier cry, you take his son away," McNeilly, 33, of Grand Ledge, said last week as he blinked back tears. "It's devastating."
McNeilly believes he lost custody of Joey because he was in Iraq for 15 months.
There's debate over whether that's true.
Joey's mother, her lawyer and the Ingham County Friend of the Court say McNeilly lost custody because of his parenting skills, not his deployment.
But others, including guard officials and one state lawmaker, disagree.
"He would still have his son if he hadn't been deployed," said Maj. Dawn Dancer, public affairs officer for the Michigan National Guard.
The case is among the latest - and some say most disturbing - in a national trend of custody battles in which soldiers say they are being punished by family courts because they were called to duty.
And it's prompted state Rep. Rick Jones, R-Grand Ledge, to begin work on legislation aimed at barring courts from using soldiers' absences for active duty against them in custody hearings. Jones hopes to introduce his bill as early as Wednesday.
"This man went and served his country and in return had his rights trampled," Jones said.
"He should be praised, not punished."
Don Reisig, director of the Ingham County Friend of the Court, said confidentiality laws bar him from saying much about the case.
But he said the court's recommendation issued in May not to restore shared custody has nothing to do with McNeilly's military service.
"The fact that he was called up to defend his country makes no difference," Reisig said. "That is not the nexus or the cause of his not getting back his custodial rights."
But a report from the May hearing says the court favors Joey's mother, Holly Erb of Mason, because she was the "day to day caretaker and decision maker in the child's life" while McNeilly was deployed.
Erb declined to comment.
"This is outrageous," said Kathy Moakler, deputy director of government relations of the National Military Family Association in Alexandria, Va. "It's a scary precedent to set, charging the parent with abandonment because he was deployed."
No simple matter
Like many custody battles, the case is complicated.
McNeilly had shared custody of Joey, his only child, before being deployed in January 2004. Joey would spend one week at his dad's and the next at his mom's, who then also lived in Grand Ledge.
The arrangement had been in place nearly five years, since Joey was 4.
But Erb, McNeilly's ex-girlfriend and Joey's mother, petitioned the court for full custody seven months after McNeilly joined the National Guard in 2003.
McNeilly agreed to give Erb temporary full custody until he returned from duty. The new custody order said the issue would be revisited when McNeilly returned from Iraq.
The court referee recommended against restoring custody and instead gave McNeilly visitation rights for every other weekend and some holidays.
A hearing set for Wednesday before Ingham County Family Court Judge Janelle Lawless has been postponed. A new date has not been set.
Erb's lawyer, Theresa Sheets of Lansing, said Erb wanted full custody because she no longer found McNeilly to be a fit father.
"This has absolutely nothing to do with his military service," Sheets said.
"It has everything to do with his behavior as a parent."
Sheets pointed to the court referee's report that made the case against McNeilly.
The report says that McNeilly treats his son more like a friend than a son, and "sees the child as a counterpart in his military adventures."
It also questions some of McNeilly's correspondence to his son while on active duty.
McNeilly said one postcard showed a soldier holding a gun. Another showed a soldier spearing a tire as if it was an enemy.
The court report says McNeilly also told his son how to kill people in multiple ways, and that he wrote his son "the next time someone touches you and leaves bruises on you - I'll be ready."
McNeilly said the statements were taken out of context. And he believes the postcards were appropriate for a then-8-year-old boy.
But Sheets said the correspondence crossed the line.
"My client is making sure to turn off the TV when the news reports deaths in Iraq and (McNeilly) was engaging in behaviors that brought fear," Sheets said.
Sheets also said McNeilly didn't send child support for the first six months he was in Iraq.
Legally, McNeilly didn't have to pay child support until Erb took full custody of the boy in July. McNeilly then started paying $525 a month.
Sheets added that there's more to her client's claims of McNeilly's poor parenting skills but she declined to elaborate, saying she didn't want to disparage McNeilly.
New problem
Guard officials say this is a new problem facing many members who have nontraditional families.
Not since World War II has the military relied so heavily on reservists, and back then, most soldiers were either single without children or married.
Few had to worry about custody battles while fighting a war.
"This is a problem that we're hearing more of," said Moakler, whose association provides support to military families, including educating them about their rights and benefits.
Capt. John Wojcik, judge advocate general to the Michigan National Guard, said he knows of 15 to 20 custody battles that have erupted either while or as a result of a reservist going on active duty.
Wojcik said he's been able to help get most of those cases delayed under the Servicemember's Civil Relief Act, which gives service members a 90-day postponement of civil court hearings.
McNeilly's case is different and difficult, said his lawyer, Pat Boog of Lansing.
The court must consider whether it's in Joey's best interest to have custody changed. Sheets will argue that her client has created a more permanent, stable home for Joey while McNeilly was away.
"It can be fairly disruptive for parents to come and go," Sheets said. "A child's life needs continuity and regularity."
But Boog said serving in a war is not your typical coming and going.
"He wasn't just gone," Boog said. "He was serving his country.
"It's unfortunate that someone has to go overseas to serve his country and loses his privilege or right to be a parent."
Contact Stacey Range at 377-1157 or
[email protected].
• State Rep. Rick Jones, R-Grand Ledge, could introduce legislation as soon as this week barring courts from using soldiers' absence for active duty against them in custody hearings.
• A hearing scheduled for Wednesday before Ingham County Family Court Judge Janelle Lawless has been postponed. A new date has not been set for Lawless to hear testimony on Spc. Joe McNeilly's request to have shared custody of his 10-year-old son restored.
This is ABSOLUTE and COMPLETE BS!!! I know that this happens all of the time. DH was active airforce and would go TDY for 45-90 days. EVERY SINGLE TIME he would come home, BM would say SD "doesn't know him" "they don't have a relationship" etc. and then visitation would be VERY VERY limited. She sent him through hell just to see his child. Now I don't know about all of you, but if I "don't know" someone I sure the h&!! am not going to get to know them with limited contact! On the contrary, I would need MORE TIME! I am telling you that this system NEEDS A COMPLETE OVERHAUL!!! I pray this legislation passes. We need changes and we need them yesterday!!!
he would not have only lost custody.....he would have not even had joint legal. He would have went from 1 week before the school year until one week after to 5 days at x-mas and 2 weeks in the summer all in one bang.
Sure puts a clitch into Patriotism. Mine has been going down hill for quite sometime. No more 4th of July celebrations or waving "old glory". Until this country goes back to respecting everyone equally, there will be continued drops in enlistments.
This happens far too often. Go fight on foreign soil, leave your children, and your rights on your home soil are TOAST.
We need to start getting MAD.....
Brent, this was a good find......
Thanks for sharing.
Retired, USAF here
This is happening to us NOW! Husband is in Iraq and I am also military. BM lives in another state with SS (Illinois). She took us to court last summer and it cost us over $7,000 because she wanted more child support. He was ordered to pay $600 per month and was paying $800 voluntarily to aid with private school (for a 3 year old at the time!). After court, and $7,000 later, this is what happened:
She threatened custody anytime she didn't get what she wanted - still does. They currently have joint custody but we live in another state so it does us no good.
She asked for more child support - it was mandated to $1,000 per month now. We pay with no grudges.
She also tried to get us to pay for her attorny's fees. ???!!!! She didn't get it.
Judge ordered no out of county (that's county, NOT COUNTRY) visitation for child until age 7. That ruling pretty much tied up any time we have with his son. If we want to see him, we have to go to Illinois. First off, it is very expensive. We would pay but that isn't the issue. Issue is time off from work - the military. Not easy to come by these days with a WAR going on.
Judge also did not grant us our requested visitation times: E/O holiday, 1 week during the summer. WHY NOT? Is this even legal? Is it fair?
I guess our law firm we paid very good money for wasn't so good even though they specialized in father's rights. We didn't get ANYTHING we asked for. So, here we are. Serving our country and deploying overseas. Meanwhile, the BM is banking our money and we are not able to see his son. She doesn't return my phone calls and husband gets limited abilities to call from overseas.
Does anyone have any positive suggestions for us? Advice? What should we be doing now to prepare us for the NEXT time she wants to take us to court?
We may both be giving up the opportunity to retire from the military so we can move closer and maintain a stable, healthy relationship with the child. We've been in almost 13 years each and we're so close to retirement! It just isn't fair.