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" On Christmas 2006, Lisa Hayes slung her rifle across her shoulder and headed over to the row of phones at Camp Cropper. Every day for the past three weeks, the National Guard member had been calling the States from Baghdad, trying to reach her young daughter, Brystal. The little girl, then 6, was living with her father, Hayes&amp;#039;s ex-husband, Tim Knight, while her mother was in Iraq. Hayes had always been able to reach her before, but now each time she called, she listened to the phone ring and ring, and no one ever answered. Worried, she phoned the police in Dublin, NH, the next day \u2014 having no idea as she dialed that she was about to become the public face of a growing crisis confronting servicemembers overseas with children back home.  &amp;quot;The officer said, &amp;#039;Please hold, there are some things I need to tell you,&amp;#039;&amp;quot; Hayes recalls. &amp;quot;I was probably waiting for just moments, but it felt like forever. I thought I was going to throw up. He finally came back to the phone and said that Tim and his girlfriend, Brenda Brown, had had several altercations at their house. Tim had been very belligerent, and Brenda had duct-taped him and beat him up. The officer, Ryan Quimby, was checking on Brystal daily to make sure that she was OK.&amp;quot; Frantic, Hayes flew to New Hampshire a few weeks later, as soon as she could get permission from her superiors, in hopes of scheduling a court hearing to get Brystal away from Knight, who had temporary custody while she was deployed. But family courts don&amp;#039;t run on military time, and Hayes&amp;#039;s two-week leave expired before she could get a hearing. A court date was finally set for March 2007, and she flew back from Iraq again, on emergency leave. The case was cut-and-dried. Officer Quimby gave graphic testimony about the chaos in Knight&amp;#039;s home. Brown had already pleaded guilty to domestic assault, and Knight even admitted that he&amp;#039;d once hit Brystal. Hayes walked out of the courtroom with a temporary custody order. She had won, but without any close friends or family who could take care of the girl, she had to choose: fulfill her duty to the Army \u2014 or to her daughter?  Such conflicts have increased as the population of the armed services has changed. Since the draft ended in the 1970s, our all-volunteer military has tried to retain enlistees by offering long-term career possibilities and cash incentives. They&amp;#039;ve succeeded \u2014 but in doing so have caused certain changes. Once service\u00ADmembers were primarily young, single male draftees; now they include more older, married volunteers \u2014 male and female \u2014 who are more likely to have kids. Single parents (divorced or unmarried) now comprise 142,319 of the 1,466,898 members of the active forces. But neither the military nor the U.S. courts has fully recognized this reality, and when problems arise with child care and custody arrangements, enlistees find themselves in uncharted legal territory that neither system is equipped to handle. The trouble stems, in part, from a clash between local and federal law. State law covers family matters, while many military issues fall under federal jurisdiction. These two systems can be completely out of sync, with the military often seeming unaware of state-court requirements, and family courts apparently oblivious to military needs. Hayes resolved her crisis by deciding that Brystal had to come first; instead of returning to Iraq at the end of her leave, she stayed in New Hampshire. In April 2007, she was officially charged with desertion. Hayes spent two months living in fear of being seized while driving back and forth to her daughter&amp;#039;s school; then her lawyers suggested going to the newspapers, on the theory that publicity might pressure the military into finding a solution. Hayes finally agreed \u2014 though she says she felt humiliated at the idea of the press &amp;quot;airing her dirty laundry&amp;quot; \u2014 and last June she broke her story in New Hampshire&amp;#039;s Concord Monitor. Just after the news hit the paper, she packed up Brystal, drove 300 miles to Fort Dix, NJ, and turned herself in. The publicity tactic seems to have worked. Though her previous requests for an honorable discharge had been refused, Hayes was met that day by the fort&amp;#039;s judge advocate general (JAG) attorney, and they filled out the necessary paperwork, with Brystal at her mother&amp;#039;s side. Four days later, Hayes headed home, honorable discharge in hand, ready to start over \u2014 and figure out how to come up with $24,000 in lawyer fees. Attorney for the New Hampshire National Guard Francine Swan declined to comment on Hayes&amp;#039;s case. Pentagon spokesman Lieutenant Colonel Les&amp;#039; Melnyk told Good Housekeeping, &amp;quot;The Department of Defense cares deeply about both our servicemembers and their families. Any servicemember who is deployed and experiences family problems back home is subject to psychological stress that could decrease effectiveness on the job and undermine military readiness.&amp;quot;  While Hayes&amp;#039;s story drew attention to the growing number of custody problems of military personnel, her case was actually simpler to resolve than most. More often, the disconnect between the courts and the military puts parents in uniform at a serious disadvantage in getting their kids back. &amp;quot;The situation is so unfair and so serious that states need new laws to protect the rights of enlisted parents,&amp;quot; argues Mark Sullivan, a retired JAG colonel who is now a family lawyer in Raleigh, NC, and author of The Military Divorce Handbook.  Although nobody tracks the exact number of such cases, Sullivan has amassed a huge binder of examples \u2014 and Tanya Towne is one of them. A longtime member of New York&amp;#039;s Army National Guard, Towne returned from Iraq at the end of her tour to find that her ex-husband wanted to parlay temporary custody of their son into becoming the boy&amp;#039;s primary caretaker. And as their dispute played out in court, Towne felt that, instead of being protected or appreciated for serving her country, she was being penalized for it.  It&amp;#039;s not supposed to be that way. A federal law, the Servicemembers Civil Relief Act of 2003, was passed to prevent home foreclosures, car repossessions, and other civil court actions from proceeding during an enlistee&amp;#039;s deployment. Lt. Col. Melnyk cites the act as providing &amp;quot;powerful rights to mobilized custodial caregivers,&amp;quot; but acknowledges that its provisions are not always carried out by the courts. Indeed, many judges believe that the child&amp;#039;s &amp;quot;best interest&amp;quot; trumps military parents&amp;#039; right to keep legal actions on hold during a long absence. Even when courts do obey the act, judges&amp;#039; assumptions may work unfairly against parents in uniform. Advocates such as Sullivan acknowledge that family courts often face difficult choices as they try to balance the needs of military moms and dads, the feelings of non\u00ADcustodial parents who may want to keep the kids, and the best solutions for the children themselves. But the results of some cases amount to allowing those noncustodial parents to overturn long-standing custody agreements simply because the other parent is, or has been, deployed. Here&amp;#039;s how it happened to Tanya Towne. In 2004, just before she was sent to Tikrit, Iraq, Towne sat down at her kitchen table to fill out her Family Care Plan, a legal document required by the military that spells out what will happen to a child if the parent is deployed. But Towne made a crucial mistake. She had primary physical custody of her then-8-year-old son, Derrell. An A-student and avid skateboarder, the boy visited his father, Richard Diffin Jr., during summers and on other school breaks, as the former couple had agreed in their 1997 separation. Towne had been remarried for two years, to Jason Towne, and Derrell lived in Palatine Bridge, NY, with them and their infant son; Diffin lived in Virginia. The Townes felt that since Derrell was happy and well-adjusted in New York, it was best to keep him there, so Tanya tried to sign custody of her son over to her husband, the child&amp;#039;s stepfather.  As sensible as this arrangement may seem, under the law, a child belongs with a biological parent. If one parent becomes unavailable for an extended period, then by default the child generally goes to the other. Also, the Family Care Plan does not override court-appointed custody. It&amp;#039;s not surprising that Towne was unaware of these facts: Many military parents, acting in good faith, try to assign guardianship to siblings, parents, and new spouses, sometimes without even notifying the other biological parent about their deployment.  Towne did tell Diffin about the plan, but he saw things differently and went to Montgomery County Family Court in upstate New York to ask for temporary primary custody while she was gone. Towne hired a local attorney to argue that the boy should stay in New York, near his grandparents, aunts and uncles, and baby half brother. That was a bad move, says William E. Lorman, Towne&amp;#039;s current attorney: &amp;quot;The court took it as a lack of appreciation for the importance of the father-son relationship.&amp;quot; Diffin won a temporary custody order from Judge Philip Cortese, and the boy moved to Virginia in June 2004. Still, the temporary custody was supposed to be just that \u2014 temporary. In some states, like Michigan and Kentucky, that order would have automatically expired upon Towne&amp;#039;s return and Derrell would have gone back to her home. &amp;quot;Other states, like Arizona and California, have rules that bar a parent&amp;#039;s deployment from being considered at all in a change-of-custody hearing; North Carolina has both protections,&amp;quot; explains Sullivan. New York, however, has neither, and the order that sent Derrell to Virginia had no expiration date. So when Towne landed back on American soil after a year and a half of driving armored Humvees and cargo trucks on supply runs out of Saddam Hussein&amp;#039;s former palace, Derrell wasn&amp;#039;t at Fort Drum in New York to greet her. Towne, then 30, tearfully embraced her parents and toddler, but her heart was torn. &amp;quot;All I wanted to do was see Derrell,&amp;quot; she remembers. &amp;quot;And he needed to see with his own eyes that I was back, and that I could be his mom again.&amp;quot;  But taking care of his son for the 18 months of Towne&amp;#039;s deployment had made Richard Diffin unwilling to go back to the old arrangement. He filed a petition to modify the original agreement and transfer primary physical custody of the boy to him. As an opening salvo in the fight, he had refused to let Derrell attend his mother&amp;#039;s homecoming.  So 10 days after her return from Tikrit, Towne appeared in Judge Cortese&amp;#039;s courtroom to argue her right to keep her son. To challenge her, Diffin needed to show that there had been a &amp;quot;substantial change of circumstance,&amp;quot; which generally means a significant alteration in the child&amp;#039;s or parent&amp;#039;s circumstances that justifies a change in custody. Instead, his lawyer told the court that the boy&amp;#039;s bond with his father had grown and that his life had stabilized. &amp;quot;He was stable during the eight and a half years he lived with me,&amp;quot; says Towne. &amp;quot;I honestly didn&amp;#039;t think that the judge would consider that a valid argument.&amp;quot; She wasn&amp;#039;t even in danger of being deployed again. But Judge Cortese was sympathetic to Richard Diffin&amp;#039;s argument, and as Towne stood by, dumbstruck, he scheduled a custody trial for later that winter. Derrell would stay in Virginia, he instructed, while the case played out. All Towne got was the right to pick him up at Thanksgiving and again at Christmas that year.  Glumly, Towne reviewed her finances and withdrew money from a retirement account to pay her lawyer. To make matters worse, her second marriage was ending, a casualty of the couple&amp;#039;s long separation. Towne had withstood mortar explosions and roadside bombs in Iraq, but coming home, she recalls, &amp;quot;was like walking into a nightmare.&amp;quot; In February 2006, the trial began. A poised, confident 10-year-old, Derrell told the court he didn&amp;#039;t prefer either parent above the other. Wherever he lived, he earned excellent grades and had friends. Both parents seemed polite and appealing. One of the few differences: Diffin and his wife of five years were still together but Towne&amp;#039;s marriage was over. Towne&amp;#039;s attorney, Michael Sutton, asked Diffin why he had never fought for custody in the eight and a half years before Towne&amp;#039;s deployment, and Diffin admitted that until Towne went to Iraq, he had had no grounds. In other words, Sutton later contended, Diffin was only able to get into court to reargue the agreement because Towne had been mobilized. &amp;quot;If she hadn&amp;#039;t gone to Iraq,&amp;quot; says Sutton, &amp;quot;this wouldn&amp;#039;t have happened.&amp;quot; Towne and her lawyer were both confident in that argument. But in August 2006, Judge Cortese ruled that Derrell&amp;#039;s father provided a more stable environment and awarded him primary physical custody, essentially reversing the old arrangement. Towne would have Derrell in the summer and on some holidays. The judge barely mentioned her service in Iraq, except to state that it had no impact on his decision. &amp;quot;It was a travesty,&amp;quot; says Sutton.  Derrell dissolved into tears at the news, and Towne decided to fight on, despite the financial hardship. Her appeal came before the Appellate Division for the Third Judicial Department of New York State Supreme Court in October 2007, and, in front of the five justices, Lorman, her new attorney, argued that it was inappropriate for the family court to use her deployment as grounds to contest a custody arrangement that had held since 1997. He noted that three states have laws forbidding this practice and five are considering them. On January 3, the decision came down: Derrell would stay in Virginia. The judges ruled that while Towne&amp;#039;s deployment alone didn&amp;#039;t warrant leaving the boy with Diffin, the &amp;quot;consequences of her extended absence&amp;quot; had to be considered \u2014 meaning now that Derrell was in Virginia, it wasn&amp;#039;t in his best interest to move him again. Heartbroken, Towne wishes she&amp;#039;d fought her deployment. &amp;quot;I loved being in the military,&amp;quot; she says. &amp;quot;But I would never have chosen it over my child.&amp;quot; As for Lisa Hayes, now 33, she does have her daughter, but she&amp;#039;s working two jobs to support her family. This past October came the final insult: a bill from the military for $9,108.75. Although Hayes&amp;#039;s discharge papers say otherwise, the Army claims that she owes money for the time she was AWOL but receiving a paycheck. &amp;quot;It seems to me to be a punishment for going to the press to help get the outcome she needed to take care of her child,&amp;quot; says her lawyer, Linda Theroux. Hayes is protesting; at press time, the bill had been reduced (to $7,435.71) but not withdrawn. The entire struggle has left Hayes bitter. &amp;quot;We need more laws to help,&amp;quot; she says quietly. &amp;quot;Because as much as you love your country and want to serve, it&amp;#039;s tough. Nothing will be the same when you get home.&amp;quot; "^^<http://www.w3.org/2001/XMLSchema#string>
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