Questions again

[Imom]

I am in no way second questioning you or anything, my huasband has told me about a new law??? I am the one below whom asked questions about my husband and his custody and deploment. This questions is for me due to the fact my husband will not listen to me and will only listen to his Jag officers whom condridict all the information I have found. We live in Indiana and bm lives in Mississippi. I have even been incontact with the attorney general's office in Mississippi. After today I thought maybe I missed something or didn't give you all information, or anyone else for that matter.

1.The Jag officer's told my husband that no matter if bm gets emergency temp custody here (Indiana) that he will get physical custody back, even if he is gone 6 months-2 years, deployment it not grounds for change of custody.
Is this true?

2. That if bm gets emergency temp custody in Miss. the same thing applies as above, but there is a new law that the custody case remains in Indiana (ie. once he returns after 6 months-2 years the case returns to Indiana).  Again the above applies since deployment is not grounds for change of custody.
Is this true?

3. I have been reading a little about the sailor's and soldier's act.  To my understanding of that a final judgement can not be made until he is back or is able to be in court, and it has nothing to do with him losing custody. Can you explain any thing about this act.

[socrateaser]

>1.The Jag officer's told my husband that no matter if bm gets
>emergency temp custody here (Indiana) that he will get
>physical custody back, even if he is gone 6 months-2 years,
>deployment it not grounds for change of custody.
>Is this true?

Technically true, in practice, arguable. Deployment may not be grounds for a change in custody, but if the child lives in a new locale and develops a new routine, friends, school, etc., then this new status quo is a substantial change in circumstances affecting the child's best interests, and a family law court may respond positively to a motion for a TRO to maintain the child in the status quo environment until the court can determine if the child will be emotionally harmed by returning to the old environment.

Under the Uniform Interstate Child Custody Jurisdiction Act, "A court...has temporary emergency jurisdiction if the child is present in the state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse."

It would be trivial to argue that a child is threatened with mistreatment by altering a well-established status quo living arrangement of six months or more, simply to reestablish a prior, no longer current living arrangement, terminated by a military deployment. How would the court rule? I don't know for sure, but the point is that the court has sufficient room to rule AGAINST your husband, and family law courts are notorious for making just this kind of ruling.

I'm a gambler by nature, but I want the odds in my favor, and on your previously posted facts, I don't like the odds on this one.

>
>2. That if bm gets emergency temp custody in Miss. the same
>thing applies as above, but there is a new law that the
>custody case remains in Indiana (ie. once he returns after 6
>months-2 years the case returns to Indiana).  Again the above
>applies since deployment is not grounds for change of
>custody.
>Is this true?

I am unaware of the law to which you refer, but it doesn't matter. See my answer to #3, below.

>
>3. I have been reading a little about the sailor's and
>soldier's act.  To my understanding of that a final judgement
>can not be made until he is back or is able to be in court,
>and it has nothing to do with him losing custody. Can you
>explain any thing about this act.

A TRO trumps EVERY other legal artifice except a contradictory order from an appellate court. So, while I could give you a disertation on the Soldiers and Sailors Relief Act, it's irrelevant under this scenario.

If a MS court grants a TRO in favor of the mother while the child is within the state of MS, then your ONLY recourse is to file an interlocutory appeal with a MS appellate court.

And interlocutory appeals are almost always rejected by appellate courts. So, even if you do appeal, more than likely, you'll be wasting your dough.

Ever see the movie, "Field of Dreams?" There's a scene where Shoeless Joe Jackson gives hitting advice to the kid, Moonlight Graham:

Shoeless Joe Jackson: The first two were high and tight, so where do you think the next one's gonna be?
Archie Graham: Well, either low and away, or in my ear.
Shoeless Joe Jackson: He's not gonna wanna load the bases, so look for low and away.
Archie Graham: Right.
Shoeless Joe Jackson: But watch out for in your ear.

That's my advice: watch out for in your ear.

[Kitty C.]

Especially since I live in the same state!  But it's 'in your ear', just so's you know............

'Is this Heaven?' 'Yes, it's IOWA..............'

[beejord]

I hardly have as much info as Soc but I can tell you a few things about the issues, as we're going through them as well.

I used to post here years ago and still read frequently.
My dh got custody of his son in 99. The ex wife was (probably still is- but hard to prove as she hasn't been arrested or involved in any incidences in 13 months-although her new husband of 1 month has) a drug addict/alcoholic. Despite the ex being arrested after trying to pick up the child for visitation when she was drunk and later being sent to her 5th inpatient rehab from probation (not the incident when she was arrested during pick up), my dh wasn't even able to get supervised visits. The judge told my husband to "send the kid with a cell phone".

His ex and him were both military until she got kicked out for drug use. He remained reserves and recently got deployed.

He talked to JAG at several bases. We also have a private attny. since child support was just resolved - court date in Oct. and final order in Feb. Support had been pending for over 22 months.

JAG told him there was no way, no how at some places. Another JAG tried to tell him that SSCRA - now SCRA- doesn't apply to custody cases, ect.

The truth to the matter is, you can try to get a stay ordered but the liklihood of it happening isn't great.
My dh is out of the country and his ex tried to serve modification papers at his parents house in our old state. (We moved 6 months ago due to military orders- before he deployed). I sit here waiting everyday to see if the modification papers will be served here or what her next plan is.
I will try to get the court to stay the proceedings, but they can deny it.
Deployment can (and in our case) is being used as the reason to modify custody.

I *think* your JAG may have been referring to the UCCJA and or PKPA in saying that jurisdiction would remain in your state. In theory, it's true but jurisdiction matters are very complicated and you really need a competent attorney to handle it. My dh, his attorney and I will be trying to move jurisdiction if our old state doesn't grant the stay (because no one remains in the state that issued the order continuing custody with my dh or ordering support) because our current state has statute and case law that addresses custody in situations with step -parent involvement.
Regardless of what I do, we know that it's an uphill battle and it's likely that when my dh returns from this deployment, his son may be living with his bm.
If that happens, it will be hard to get him back again. It took my dh 4 years of battles with an ex who he could PROVE was mentally unstable and had criminal/substance abuse issues. Our only real hope is that the poor little guy (he's 12) will have the courage to tell a court that he would prefer to stay with his sm and sisters and not go to his mothers, until his dad returns. It's a lot to put on him and we don't look forward to it at all.

You should check into a KS appealte court decision- Rayman v Rayman that addresses custody of a deployed service member's child (it was an unaccompanied tour to Korea though- not a war time deployment).

[socrateaser]

i guess maybe i should have looked up the actual scene before posting...so now I have, and I've edited the post for accuracy.

Thanks for keeping me honest.

[Imom]

I told soc. this but this is where you would think my husband would question the Jag officers. He told him that if he (hubby) would return before August 10 of this year (pick up day) then he could just go take ss from bm even if she has temp. custody. He would not have to go to court, just go and pick him up.

[beejord]

Doesn't your hubby have an attny?
I would guess that JAG is wrong (and they are about a lot of custody issues). Since there is an order granting custody- even if temp.- then the bm has custody for the amount of time specified or until further court order. He would be in violation of that court order.

I don't remember if you said he was already deployed or not- but if he is still here- he should at least get a consultation with an attny experienced in family law matters. Many do free consultations- but even if it costs- it would be worth it, in my opinion.

Soc-

1. Is my assumption right about him being in violation if the court makes a temp order granting the other party custody (unless it has a specific termination date)?

2. Couldn't they try to fight a temp order in MS under UCCJA saying that Indiana is child's home state?
I know my dh gave me a "guardianship POA" which allows me to act on behalf of my ss in his absence- I have taken him to dr, bought clothing, haircuts, school supplies, ect. so my ss hasn't been abandoned or neglected (which would allow another state to assume emergancy jurisdiction)....

[Imom]

I have a P.O.A, they (National Gaurds) had him to issue me one in 2001 it staes:
I give  my attorney -in-fact or any successor attorney-in-fact the powers specified in this section to be used on my behalf all authority I would have in regard to the care, custody and control of my son, xxxxx x xxxxx, date of birth, xxxx xx, xxxx. Social Security Number xxx xx xxxx.
Now when the bm had a fit about it we called the attorney general's office in Mississippi and they said they will honor it as long hubby was not in the hospital for a long stay or if he were deployed they would not honor it.

[socrateaser]

Do you have a question?

[Imom]

I was just letting the other poster that I already have a P.O.A. to act on my husbands rights regarding ss. But I don't think it would aply in our case since Miss. already stated they will not honor it if my husband is deployed.  The other poster had questions, but we know the answers.