This sort of ruling (which by the way goes on continuously) is clearly discriminatory against women...
I've been reading a lot lately about how women are having so few children that western societies are facing many serious problems in the future due to our current low reproductive ratio...WELL here's another good example of why women DO NOT wish to take the 'leap of faith' involved in having children...
First of all this father should NEVER have been given physical custody to begin with as it's clear that an active duty member of the military can be deployed AT ANY TIME...ANYTIME...and countless women in the military, countless, LOSE custody for this very reason CONSTANTLY... with Judges claiming that the military lifestyle is too unstable to support single parenting.
Actually threats of losing custody appears to NOW be commonly used as a weapon against women in the military as a way to drive single mothers out of the services...
Perhaps single mothers SHOULD NOT be in the service, but that's a different issue and should be openly discussed and addressed w/o dragging these bias issues into it...
However this nonsense of a DOUBLE standard for men who deploy should be addressed and STOPPED immediately as when men deploy, children should be sent immediately to go live with their non-custodial mothers and NOT be dumped off on grandparents and certainly NOT a female step-person EVER...JUST THE SAME AS COURT RULE WHEN CUSTODIAL MOTHERS IN THE MILITARY ARE DEPLOYED...THE SAME WAY...
Clearly this is NOTHING but an attempt by men in the military to avoid paying child support while they are deployed and certainly NOT in childrens' best interest...
It's simply outrageous that these Judges should be helping them get away with this, simply outrageous...
I couldn't fit the entire decision here but just enough to show the sheer outrageousness of the ruling; and another reason WHY women must begin to get involved in politics, particularly the election and/or appointments of Judges to Federal courts...
IN THE COURT OF APPEALS OF IOWA
No. 4-468 / 03-2100
Filed November 15, 2004
IN RE THE MARRIAGE OF MICHAEL GRANTHAM and TAMMARA SUE GRANTHAM
Appeal from the Iowa District Court for ButlerCounty, Paul W. Riffel, Judge.
Michael Grantham appeals the judgment of the district court modifying the decree dissolving his marriage to Tammara Sue Grantham.
REVERSED AND REMANDED.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer,
JJ.VOGEL, J.In this appeal, we consider the implication of the Soldiers and Sailors Civil Relief Act (SSCRA), 50 U.S.C. app. §§ 501-591, when a parent, enjoying physical care of his minor children under a decree of dissolution, is called to active military duty. We conclude the district court erred in not granting a stay of the modification proceedings pursuant to this Act and further erred in entering a temporary change of physical care on a petition to modify.
Additionally, upon our de novo review, we find no permanent and substantial change of circumstances warranting a change of physical care.
Therefore, we reverse and remand.
I. Background Facts and Proceedings
Michael Grantham’s and Tammara Sue Grantham’s marriage was dissolved on July 11, 2000. The stipulated decree provided for joint custody of their two minor children, then ages ten and six,
...with physical care to Michael...
In mid-August 2002, Tammara was informed by one of the children that Michael,
a National Guard member for over eighteen years,
had been called to active duty and that the children would be residing
with Michael’s mother, Irmgard Grantham. Michael was officially called to active duty on August 21, 2002, and reported to his unit’s armory on August 24. He returned home on a short leave on August 27. While home on leave, Michael reviewed his existing “Family Care Plan” with his lawyer and mother and executed the documents necessary to allow Irmgard, who had been a frequent care giver of the children, to care for the children in his absence.
A Family Care Plan is prepared as a part of a soldier’s regular duties and is meant to provide for the care of a soldier’s family. A Family Care Plan is required by military regulation and reviewed when a soldier is called up for active duty. An existing Family Care Plan may be changed; it is not set in stone. A soldier is not deployable until a Family Care Plan is validated and approved, and only the soldier’s commander may approve a Family Care Plan.
Also on August 27, 2002, Michael and his attorney met with Tammara and her attorney at her attorney’s office in Waverly, Iowa. Discussed at this meeting was the possibility of Tammara caring for the children in Michael’s absence instead of Irmgard. Tammara’s lawyer subsequently drafted a proposed stipulated agreement providing for this arrangement, which was provided to Michael later that day.
The following day, Michael returned to National Guard duty at Camp Dodge in Des Moines. After reviewing the proposed agreement with his JAG (Judge Advocate General’s Corps) officer, Michael decided not to enter into the agreement. On August 29, Michael was counseled by his commander on his responsibilities to the military and to his family and Michael filled out a new DA Form 5305-R (Family Care Plan) which provided that Irmgard would care for the children in his absence. Later that same day, Michael’s commander reviewed and approved the Plan.
On September 4, Tammara filed a petition seeking physical care of the children, temporary and permanent support, and suspension of her child support obligations. On the same day, Tammara obtained an ex parte order from the district court setting a hearing on her requests for temporary relief for September 20. Michael was served with the Petition on September 5 while at his unit’s armory in Estherville, Iowa. On September 7, Michael left with his unit for Fort Knox, Kentucky. On September 10, Michael filed a motion requesting a stay of the proceedings pursuant to the SSCRA. No hearing was set on Michael’s motion. On September 20, in his absence, a hearing on temporary placement and child support was held. Although not scheduled, the Court also took up the issue of Michael’s request for a stay at this hearing. Michael’s counsel made a professional statement indicating that Michael was not able to attend the hearing due to his military duties and offered to call his commander to verify this statement.
In a ruling filed October 3, the district court denied Michael’s request for a stay and set a scheduling conference for October 10. The district court based its decision on its finding that [t]he record herein fails to reflect that [Michael] made any showing for a stay other than to state in his unverified filing on September 10, 2002 that he had been placed on active duty and could not appear in court. The record does not reflect by affidavit or otherwise that the Petitioner made any effort to obtain a leave of absence to enable him to be present at the hearing or made any effort to participate telephonically in the scheduled hearing.
Additionally, the record reflects that the Petitioner
acted in bad faith in attempting to exercise his rights under the act by deceiving the Respondent into believing that he was making a good faith effort to reach an agreement when in fact he had no intention of doing so and was merely delaying matter until he had to report for active duty.
The October 10 scheduling conference was held without Michael present and reset the hearing on temporary matters for October 29. Michael, although he was represented by counsel, was unable to participate in the October 29 hearing because of his continuing military duties. At that hearing, Michael’s attorney again sought a stay under the SSCRA and in support thereof filed an affidavit and a letter from Michael’s commander stating that Michael could not attend the proceedings. Michael also moved to continue to a time when he could participate in the hearing. He further moved to dismiss on the grounds that there is no temporary custody remedy available in Iowa Code chapter 598 (2001) for modification proceedings.
On October 30, the district court entered an order denying these motions, temporarily placing the children with Tammara, terminating her support obligation, and requiring Michael to pay child support.
In so doing, the district court did not rule on the merits of Michael’s reapplication for a stay, instead stating that it would not “take issue with [the October 3] ruling” on this matter.Michael sought discretionary review from the Iowa Supreme Court and requested a temporary stay. A stay was granted on November 1. However, on November 8, the court denied discretionary review and vacated the stay. Although Michael was technically on active duty until September 2, 2003, he had returned home early in August 2003 and trial on the merits of the petition for modification was held shortly thereafter, on August 27.
In its subsequent ruling, filed on November 19, the district court granted the relief requested in Tammara’s petition changing physical care of the children to her and entering related orders of visitation and child support.
Michael appeals this ruling and each and every other order therein, contending: First, the district court erred in not staying the proceedings leading up to the November 19, 2003, judgment as required by the SSCRA. Second, the district court erred in entering a temporary change of physical care order on Tammara’s petition for modification. Third, no permanent change in circumstances existed justifying the district court’s change of physical care of the children to Tammara.