Thursday, January 3, 2013
A panel of appellate court justices in Santa Ana have ruled that lower court judges erred when they took primary custody of his son away from a Camp Pendleton-based Marine while he was on a tour of duty in Afghanistan, according to records obtained this week.
The ruling from the Fourth District Court of Appeal issued Monday reverses a lower court's ruling giving primary custody back to the boy's mother, who was also active in the military when the son's parents were married.
However, that is what happened in the case of E.U. vs. J.E. The names of the mother and father were not made public in the custody battle.
The parents divorced in 2001, a year after their son was born. They had shared custody, with the father -- E.U. -- having primary custody, meaning he dictated where the son could go to school, said his attorney, Jeffrey Doeringer.
The father wanted his son to attend a school in Oceanside near Camp Pendleton, where he was based, according to the ruling. The mother -- J.E. -- wants her son to stay in an Orange County school, where they lived while the father was abroad, Doeringer said.
The father was granted primary physical custody in October 2005 and it was renewed in 2006 and 2007.
The mother was to take primary physical custody of their son when the father was deployed, but when he returned from duty he was to regain primary custody, according to the ruling.
The father was sent to Afghanistan from July 2009 to August 2010. In August 2009, the mother asked the court to give her the right to enroll her son at a school closer to her home.
The father filed papers with the court saying he could not attend a court hearing in September 2009 because of his military obligations. An Orange County Superior Court judge ruled the mother could put the son in a school closer to her home.
The father was released from active duty in August 2010, and his court battle to have the custody agreement revert back to before his deployment dragged on until February 2012.
Part of the delay included a court-ordered review by a doctor about what was in the best interests of the child. That report concluded that the boy would be fine in either household and going to either school, but was better suited to stay in the school near Orange County.
The justices ruled that should not matter and the doctor's evaluation should never have been ordered.
At some point during the legal struggle, Cook became involved and pushed through legislation further defining the statute, Doeringer said.
The update in the law forbids a court-ordered review of that type unless the parent who had primary custody who is returning from duty shows obvious signs of an inability to care for the child, such as post-traumatic stress disorder or some other type of disability, Doeringer said.
The ruling and the updated legislation should let service members "know the system will not let this happen the way this case happened," Doeringer said. "He wants to be with his son, that's all he's cared about. It's a crying shame it took so long."
The ruling mandates a hearing in the lower court within the next couple of months to determine if it should be implemented immediately or at the end of the current school year.
Messages left with the mother's attorney Brian Baron were not immediately returned.