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Father Moves to Modify Custody Arrangement

The parties were married in May 1998. They have a minor child who was born in the United States in January 2003. Both parties are enlisted members of the United States Army currently on active duty at the same army base located in the Republic of Korea, where they have been stationed since September 2003. On or about October 24, 2005, the father commenced the instant divorce action. A New York Family Lawyer said prior to commencement of the divorce action, the parties executed a marital separation agreement which was negotiated and prepared by their respective Judge Advocate General (JAG) attorneys. With respect to child custody, the agreement states that the custody of the minor child shall be shared jointly. The couple agrees that although the child may reside with the wife, both parties shall exercise joint care and control of the child and both parents may visit said minor at any and all reasonable times and places. The Non-Custodial Parent will provide 72 (seventy-two) hours notice before visitation. If less than 72 (seventy-two) hours notice is provided, the Custodial Parent will permit visitation if she/he is able to reasonably accommodate such visitation. The couple represents and agrees that the welfare of the child shall be the major factor governing all aspects of child custody and visitation rights and it is further understood that nothing shall constitute an abandonment of the said child by either of the parties. The couple agrees to consult one another with regard to any and all major decisions affecting the health, education and welfare in the best interests of said child.

The wife is the Custodial Parent. The husband is the Non-Custodial Parent. The Custodial Parent agrees to consult with the Non-Custodial Parent on such matters as major medical treatments and selection of schools for the child to promote the best interests of the child. A New York Custody Lawyer said the Custodial Parent shall exercise final determination over the matters.
The separation agreement also provides that the Non-Custodial Parent shall have the privilege, during visitation periods, to take the child home or on outings and excursions and with the Custodial Parent’s prior consent, can visit the child in their home. The couple also agreed to be flexible in their visitation arrangement, to endeavor to resolve all visitation conflicts in good faith and to make all reasonable efforts to accommodate the schedule of the other parent. Moreover, failure to reach mutual accord on a requested adjustment shall not constitute justification for the Wife or Husband to delay delivery of the child beyond the above schedule. With regard to potential visitation disputes, the couple reserved the right to petition a court of competent jurisdiction to resolve the issue with the goal of maximizing the time with both parents in order to carry out the intent of equal shared child custody; provided, however, that no modification will be implemented unless both parties agree or a court of competent jurisdiction so orders.

Subsequently, a Provisional Visitation Agreement was drafted which sets forth a specific weekend visitation schedule for the father. However, the agreement has not been executed by the couple and, by its own terms, states that such agreement, although meant to be a guide to interpretation of the subject separation agreement, is in no way intended as a formal addendum, modification or revision of the signed, written agreement previously entered into by the parties.

The wife will is unable to attend any proceedings of the court as a result of her military service because her military duties require her to serve her nation in Korea until at least September 30, 2007; and because there may not be necessary qualified personnel to cover down for her if she had to appear for Court in New York. Also, a Nassau County Family Lawyer said the wife states that dealing with the current matrimonial issues has been affecting her work and her personal life, and that she cannot adequately defend the case by going back and forth from Korea to New York.

The wife is requesting a stay of all proceedings until such time as her ability to present a defense is no longer materially affected by her military service. In opposition to the wife’s motion and in support of his cross motion for a modification of the existing child custody arrangement contained in the couple’s separation agreement, the husband submits an affidavit wherein he avers that New York is the appropriate forum for the instant action as he continues to maintain his residence in Brooklyn, his Brooklyn address is listed as his home of record in military documents, he pays New York state and city taxes and is registered to vote in New York. He further avers that it has always been his intention to return to Brooklyn when his military service concludes.

With respect to the court’s jurisdiction to determine the instant child custody dispute, it states that after the couple’s child was born, the child temporarily moved to Florida with the mother when he was three months old, resided in Florida for less than six months and subsequently relocated to Korea when the mother was stationed there and joined the father at the military base. Accordingly, the father contends that since the child lacks a domestic home state and the Korean courts located where the child currently resides will most likely decline jurisdiction over the matter, the New York court, which has jurisdiction over the instant divorce action should also exercise jurisdiction over the subject child custody dispute as it is the only tribunal that can do so. In support of the contention, the father submits a letter addressed to the court from an Army attorney allegedly familiar with the operation of the Courts of the Republic of Korea with regard to custody disputes, which states, in relevant part, that the Courts of the Republic of Korea generally do not hear or determine custody disputes between two parents, neither of whom are Korean nationals. The local court here would refuse to exercise jurisdiction to determine child custody because both his parents are United States nationals.

The husband also maintains that their child custody arrangement should be modified because the wife allegedly has failed to abide by the visitation terms contained in the separation agreement by refusing visitation unreasonably, interrupting visitation and initiating confrontational, antagonistic and violent incidents between them, some of which occurred in the presence of the their son. Specifically, he alleges that on January 24, 2005, the wife came to his place of duty and made a scene, she became violent and hysterical at her husband’s home while their child was in his care, causing the child to become fearful and cry, and then took the child against the husband’s wishes and in contravention of the visitation schedule and promised that she would never let the wife see the child again. He further avers that during a June 7, 2005 incident, he was physically assaulted by his wife in the presence of their child and that such incident formed the basis for a subsequent substantiated spousal abuse finding. The wife also avers that, as a result of the parties’ visitation disputes, numerous military and command interventions have become necessary and such disputes have caused a great deal of disruption to both of their military commands.

In addition, a letter has been submitted to the court from an Army trial counsel and the legal representative for the wife’s commanders, which states the wife’s availability to attend any necessary court dates. Changes in the wife’s chain of command have complicated the issue. The bottom line is that the wife’s command will not act as a shield to protect her form the jurisdiction of the State of New York. The needs of the Army are the foremost concern of the Commanders. The needs of the Army take precedence over the needs of the individual. However, the Army does not need to have the wife present in Korea at all times. Soldiers in Korea commonly take one to two weeks of leave each year, often traveling home to America or for a holiday in Asia. It was not the intention of a Captain or of former commander to tell the court that she would be unavailable for an entire year.

There are still obstacles to allowing the wife to take leave. Soldiers of her grade do not exist in large numbers in her Military Occupational Specialty. She is a cook and has the training to run a large kitchen. During certain military exercises when the kitchens work overtime she would not be available to leave the country. There may be other times when due to a temporary shortage of personnel her leave request would be denied. Finally, any Soldier typically needs to request leave time about two months in advance of the leave in order to ensure they receive it. Even given her special skills, the wife should be able to take leave if given several months notice.
In the instant case, the court finds that the wife has failed to demonstrate that her ability to defend the action is materially affected by reason of her current military service. The wife has fully participated in the instant motion practice, which has expanded well beyond the parameters of her original motion seeking a stay, and although her counsel has stated that she is currently appearing for the wife solely on a limited basis, the wife currently appears to possess ready access to, and active communication with, her legal representative. Nor has she demonstrated that her future ability to either obtain or communicate with legal counsel or participate in motion practice as necessary will be materially affected by reason of her military service.

In addition, to the extent the wife shall be required to attend court hearings in the action; she has failed to establish that either her geographical location or military duties prevent her availability for such appearances to the extent that her defense of the instant action would be materially affected as defined by the relevant case law. Three separate letters from the wife’s former and current commanding officers and the current commanders’ legal representative have been submitted to the court confirming the availability of leave to the wife for the purpose of attending any court-ordered hearings which may be scheduled in the action. Although an initial letter from the wife’s former commanding officer, stated that the wife will be unable to attend any proceedings of the court in the matter as a result of her military service because her military duties require her to serve her nation in Korea until at least September 30, 2007; and because there may not be necessary qualified military personnel to cover down for her if she had to appear in Court in New York, the letter only specified three time periods during which the wife would be conclusively unavailable, namely July 28, 2006, August 2006 and March 2007. The letter also noted that her absence for a prolonged period could adversely affect the Army’s operations. The said letter did not address, however, the availability of leave to the wife for the purpose of attending court appearances scheduled in New York to the extent such appearances did not fall within the specifically proscribed time periods. Such omission was rectified in the follow-up letter which stated that while it is always difficult to be without a senior non-commissioned officer, there is no reason why the needs of the Battalion would prevent the wife from being able to take leave in order to attend a court hearing.

The court finds that the instant allegations raise serious questions regarding the ability of the couple to communicate and cooperate effectively with respect to the current child custody arrangement and, therefore, a hearing on the husband’s motion for modification is appropriate. The wife’s motion for a stay, pursuant to Military Law is denied.

Nothing is more important than the welfare of a child. If your partner gained child custody and you believe that you can do better in rearing your child, or you need an order for protection, or have a child support dispute, consult a NY Family Lawyer together with a New York Child Custody Attorney. Stephen Bilkis and Associates will also be glad to assist you if you prefer to talk with a NY Divorce Lawyer or a New York Order of Protection Attorney.

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