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January 8, 2008
Case Law Development: Temporary Custody Change During Parent's Deployment Becomes Permanent Custody Change
Mother and Father had a joint custody arrangement regarding their child from ages 2 to 10, with child living primarily with Mother in New York with her husband and their child and having substantial visitation with Father in Virginia. When Mother was deployed to Iraq in 2004, Mother sought to have their nine-year-old child live with her husband and son. Father moved for a change of custody. While that action was stayed pursuant to the Service Members Civil Relief Act, the court awarded Father temporary custody. Diffin v. Towne, 787 N.Y.S.2d 677 (N.Y. Fam. Ct. 2004).
When Mother returned from Iraq, the court concluded after trial that primary physical custody should be transferred to Father. While noting that Mother's deployment was not, in itself, a change in circumstances, the fact that the child had adjusted well to living with Father, and that Mother had since divorced, were all factors that made a change in custody in the best interests of the child. Finding no abuse of discretion in this ruling, the New York Supreme Court, Appellate Division affirmed.
Matter of Diffin v. Towne, 2008 NY Slip Op 21 (January 3, 2008)
Opinion online (last visited January 8, 2008 bgf)
For more information on the Service Members Civil Relief Act, see the ABA Family Law Section guide by Mark E. Sullivan, A Judge's Guide to the Service Members Civil Relief Act
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