New law keeps divorced soldiers from losing custody in a deployment
By Joseph M. Dougherty
Friday, Sept. 4, 2009 9:48 p.m. MDT
A bill passed during the 2009 legislative session is credited with keeping a West Valley family together in the face of an upcoming military deployment. HB401, sponsored by Rep. Tim Cosgrove, D-Murray, didn’t receive a lot of press. But to Ben and Tera Frank, of West Valley, the law was the key to making sure Ben Frank’s two sons would be there when he gets back from Afghanistan in April.
The bill, which passed nearly unanimously in the Utah Legislature, ensures that military members will not lose custody of their children to an ex-spouse while they’re deployed.
Ben Frank is getting ready to deploy in September with the Utah Air National Guard as an explosive ordnance disposal technician.
Because Ben Frank was divorced and has joint custody of two sons with his previous wife, he is required to notify her of his deployment, said Tera Frank, who brought two children into their marriage.
But about a month after the couple notified Ben Frank’s ex-wife of his deployment, they learned that she disagreed with a plan for Ben to transfer his parental rights to Tera while he is deployed. Frank’s ex wanted to have custody of the 3- and 6-year-old boys during the deployment.
That would mean that the 17 days a month the boys now live with Ben and Tera Frank would have dropped to four, Tera Frank said.
To win the custody battle, lawyers for Ben and Tera Frank had to rely on Cosgrove’s bill. During back and forth calls, the Franks’ attorneys read portions of the bill to lawyers representing Ben Frank’s former spouse. The lawyers for the two parties argued about the intent of the law. In March, Cosgrove said the intent of the bill was to ensure military parents don’t lose their custody rights when they’re deployed.
“When a military service member is deployed or mobilized overseas, it helps to not have the constant concern, the constant worry, the constant anxiety of the safety and the security of their children while they’re at home,” Cosgrove said. “(The bill will) ensure what was in order before they left is also in order while they’re gone and when they return home.”
By August, Ben Frank’s ex-wife and a judge had signed a stipulation that she would no longer try to fight for full custody during the deployment, Tera Frank said.
“There is great importance to this bill because I believe Utah is one of the first states to pass such a bill to protect service members in this matter,” Ben Frank wrote in an e-mail Friday.
In July 2009, the Air Force Times reported a story of a Kentucky National Guard member who lost custody of her children after a 2004 deployment made her an “unfit parent.”
For four years, Rep. Michael Turner, R-Ohio, has been working to change federal law related to military custodial issues, but he has so far been unsuccessful.
The Air Force Times reported that Turner said he has heard two basic arguments against passing a federal law on child custody for service members: People don’t want the federal government interfering with issues normally left up to states, and that the number of cases is so small that it doesn’t warrant such a change.
“There are very few people, including military members, that know about this bill,” Ben Frank wrote Friday, adding that he hopes other states can catch on and pass similar legislation. “It is already difficult for children of military members that deploy, but for my two young boys to be stripped away from their two young step-siblings would have been a disaster for all four of the children’s well-being.”