can not show up for the hearing because he is deployed, and the judge refused to grant him the stay.

for months at a time

If he has one there shouldn't be an issue.

At least from the looks of it, child appears to be appropriately taken care of. So it's not an issue that there is no one to take care of the child while father is deployed.

She calls the stepmother "mommy."

From what I understand, she was going to hold him in contempt of court if he doesn't show up.
Which he obviously can't, being under the sea and all.

shouldn't be any more short-term drama. He'll be back before anything else can happen.

The ex, I think, wanted to stir up some drama, here. Since she hasn't paid her attorney in some time, and they've had a "falling out," she's probably going to have a tough time convincing anyone, now or in Oct, that she is a suitable custodian for this kid. And that's before anyone considers her past history of abuse and neglect.

Look downthread at UPDATE post--the judge has seen the light, the hearing is postponed. The Civil Relief Act holds sway as it should...!

Also, I can not find your second quoted statement "CPS removed the child from the home for what are probably good reasons" anywhere in this article so I have to wonder if you understand how to use quotes correctly.

"which states courts in custody cases may “grant a stay of proceedings for a minimum period of 90 days to defendants serving their country.” "

or "must"? I noticed 'may' was not in the quotation marks.

but that said, I fail to see why the current wife can't bring the kid to court in his stead.

Minimum of 90 days.

this isn't some debt issue. The child is now being raised by a non relative over a relative. That is usually only done in cases of severe neglect or abuse. I think at the very least there should be a hearing to determine the best interest of the child which may well be leaving the current situation alone. There is no earthly reason he can't have his current wife and a lawyer take the child to court and have a hearing.

If he can't show up for a hearing, he is at severe disadvantage.
And he has a right to a stay.
Judge needs to follow the law.

Imagine the disturbing precedent that would be set if service in the military was considered an acceptable reason to remove custody of a child. As a member of the Submariner Community, I'm outraged at this asshole judge.

That's why their is a Service Member Civil Relief Act, to protect the rights of military parents.
Judge needs to follow the law.

if they are in the military then they keep custody forever no matter what the other parent does or doesn't do? I am by no means a blood fetishist when it comes to these things, but the fact is he isn't raising this kid right now, his wife is. I don't know if this was considered when he got custody or not, nor do I know what the first wife did to lose custody. But I don't think this decision should become de facto permanent simply because he is in the military. Again, it might well be that the current arrangement is best for the child but it might not be and the child deserve his or her day in court. The contempt thing is outrageous but the fact is there is no earthly reason that the judge shouldn't be able to consider if while this man is on the submarine his child can't be cared for by the first wife.

He should be able to show up at the hearing and argue his case after a minimum of 90 days stay.

if the word is may and not must then no he doesn't have a right to a stay. It also is a minimum of 90 days not 90 days, so in theory he would be in your world entitled to years of delay, making this arrangement de facto permanent. I fail to see why this hearing can't go forward at least to determine custody during the time he is at sea and not seeing her anyway. Again, given the circumstances it might well be that the current arrangement is best, it should be a high hurdle to get children back after one loses them to cps. But the first wife deserves the chance to get those kids back certainly over a second wife who is the de facto parent right now.

Or she may grant it on her own volition.
Sure sounds to me that he is asking for a delay.

if it is may then no the judge doesn't have to grant the delay. The report isn't clear on that, you have supplied no link to elaborate on that, and the judge seems to think he can refuse to grant a delay. I admit to not being sure, though the absence of talk of appeal makes me think the judge is likely right here, but if you have a link otherwise I am happy to see it,

When used in the court of law, shall is equal to "must" or "obligated to."

"Hindes' Navy commanders point to the "Servicemembers Civil Relief Act." It says, "In an action covered by this section in which the defendant is in military service, the court shall grant a stay of proceedings for a minimum period of 90 days...""

http://www.komonews.com/news/local/Submariner-fighting-for-custody-far-out-at-sea-263569101.html

yes, the word is shall but underneath that is a paragraph that must be complied with to make the shall, a shall and not a may.

(b) Stay of proceedings.
(1) Authority for stay. At any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.

(2) Conditions for stay. An application for a stay under paragraph (1) shall include the following:

(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear.

(B) A letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.

(c) Application not a waiver of defenses. An application for a stay under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction).

(d) Additional stay.

(1) Application. A servicemember who is granted a stay of a civil action or proceeding under subsection (b) may apply for an additional stay based on continuing material affect of military duty on the servicemember's ability to appear. Such an application may be made by the servicemember at the time of the initial application under subsection (b) or when it appears that the servicemember is unavailable to prosecute or defend the action. The same information required under subsection (b)(2) shall be included in an application under this subsection.

(2) Appointment of counsel when additional stay refused. If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding.

(e) Coordination with section 201 [50 U.S.C. App. §521]. A servicemember who applies for a stay under this section and is unsuccessful may not seek the protections afforded by section 201 [50 U.S.C. App. §521].

(f) Inapplicability to section 301 [50 U.S.C. App. §531]. The protections of this section do not apply to section 301 [50 U.S.C. App. §531].

this is from a pdf via word. The pdf is at
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CCoQFjAC&url=http%3A%2F%2Fwww.justice.gov%2Fcrt%2Fspec_topics%2Fmilitary%2Fscratext.pdf&ei=8JmlU4rbDsmqyASA5IKIDg&usg=AFQjCNEAPhcal1fG5pHNdN8ODrbnFLUmEA

I can only guess what happened here based on what we are seeing. Since this has been brought to tv and facebook and not a federal court one has to surmise that part of this paragraph wasn't met. Did he have no lawyer at the beginning and fail to file a request or file a request that lacked a date? Did his branch of the service not send a letter? That seems unlikely since the GMA report stated a letter had been sent. If paragraph 2 has been met and his lawyer isn't in federal court he needs fired as this should be a five minute, if that, hearing to set this judge straight.

"A day after the order was issued, Hindes responded with a letter explaining his overseas military service, and he included a letter from the U.S.S. Michigan’s command staff supporting it. Hindes did everything necessary to comply with the federal Servicemembers Civil Relief Act, providing a 90-day stay in civil court proceedings if his military service keeps him away, said his lawyer, Rebecca Nighbart. Based on that, Nighbart said they expected the hearing would be postponed until his return."

http://www.freep.com/article/20140621/NEWS06/306210036/Adrian-Navy-custody-battle

It is intended to prevent deprivation of hearings for people serving their country. That's the whole idea. It's not forever, but it's so he is not prevented from his service from getting his day in court.

That the father had it in this case means that there had to be a great reason for the father to have custody. We are not privy to those reasons, but it quite conceivable that a step mother is better than the real mother.

The real outrage here is that the father isn't going to be allowed to make a case. He'll serve his country and be arrested at the port. Fucked up to the core.

that I agree with. But again, the child has a right to what is in her best interests, which may well be the current situation but it may not be. Given that the step mom is the parent right now, let the step mom make her case to determine custody for the period while he is at sea. Then when he gets back revert back to his custody if the step mom loses or keep custody if she wins.

Otherwise the non-custodial parent could seek a hearing anytime the other was away and snatch the kid. I can't believe you actually think it's OK to switch custody when one parent is out on a military deployment and may not even be aware of what is happening.

I can't even believe I'm reading this!

he could keep custody for years by being on deployment and the first wife is sol. He isn't raising this child right now, his current wife is. During his deployment it is her parenting skills not his which matter since she is there and he isn't. Again, she might be doing a bang up job and there would be no need for changing custody, but maybe she isn't. Or maybe the first wife has straightened out her life and deserves at least some custody and/or visitation. It has been four years since the removal. Let the current wife and a lawyer go in for a hearing about custody while he is on deployment and if the first wife wins then let the custody revert back to him upon his return and let there be a hearing then for custody after that.

That his rights under federal law can be disregarded?
He has a right to a stay per law.
A minimum of 90 days.
Why should the court disregard his rights?

that is a big legal difference. If the word is may then the judge may do it or he may not do it but he doesn't have to do it. In short, it become a priviledge and not a right. If the word is must, then it is a right, the judge does indeed have to do it. The absence of an appeal to a federal court suggests to me the word is likely may, as if it were must, then one trip to federal court would produce an injunction and the case would be stayed for his deployment.

it is frankly complicated apparently. The word shall is in the law but there is a whole paragraph that has to be met for the word to be shall.

This should be a slam dunk if the lawyer is telling the truth but given the behavior of the lawyer in this case it does leave one wondering. Incidentally, if this lawyer did screw up his client shouldn't be punished for that, but if the lawyer did screw up that would explain why we are seeing this on our tv.

What are you talking about?

instead of going to federal court and getting an injunction. If this falls under the shall and not the may then this would be a slam dunk for injunction.

Furthermore, there is many a case where publicity helped immensely.

without approving what and where the speaking will take place. Again, this whole thing would be gone, no need for publicity, no need for GMA, with one trip to federal court if this is under the shall part of the law. The fact that we are seeing this on tv instead makes one wonder if it is covered by the shall or if for some reason it isn't.

I don't think there is any doubt that this falls under shall.

among other problems with that behavior is you are stuck with what you say in your appearance on the show and you tend to piss off the judge who is ultimately going to make the custody decision. Again, this should have been able to be taken care of in a matter of days, if not hours, if the issue were as cut and dried as it is being presented to be. This is exactly why we have federal courts, to enforce federal laws when recalcitrant states refuse to do so.

This judge needs to follow this federal law.

and if he actually filed his request and it had a date certain by which he would appear then it is cut and dried. But if it is that cut and dried then all the lawyer had to do is go to a federal court, tell them that this state judge refuses to apply the law, and then the federal judge makes the state judge apply the law. For some reason that isn't being done, and that is quite frankly suspicious.

It's not always bad to have a light shine on the problem.

yes they won a battle, one which I think they could have won with far less publicity by going to a federal court, but they have royally pissed off the judge. That could bite them later.

The federal law is quite clear. I've posted on other threads that the jurisdiction of the federal specifically applies to ALL STATES and their subdivisions.

ANY court act which infringes upon the rights of the absent servicemember is a violation of this federal law, obviously including removal of full custody.

I would love to see federal marshals in court and arrest the judge if and when she makes a ruling. The interesting limbo right now is that the judge did NOT make a ruling on Thursday - only issued her threat to make one on Monday. So there is no court action to file against in federal court yet.

I don't think a law can be more specific than this:

Why isn't this judge granted him this leave as required by law, that is the question.

the law is neutral on this and when men seek custody, they get it more often than not.

Sorry, the stats show that when a father seeks sole custody, he has less than a 50% chance of getting it. The law may be neutral (now), but many judges are not.

Nobody is saying he gets permanent custody.

What they are saying is that he should be allowed to finish his deployment, then once available for the court proceedings they courts will sort it out.

Demanding he be in court in a situation where he clearly cannot due to military service is unreasonable. But deployments are not forever, once his is over the hearings can be held.

Unless there is concern that the current caregiver is negligent there is no reason for this to come before the court before he is available.

Threatening to rule against him and hold him in contempt for not appearing is wrong, and a clear abuse of judicial power.

or 10? That would be pretty close to permanent. Again, from what I have seen the arrangement probably is the best one, but I surely think it deserves a look. Let the wife who is currently the parent, go to court, present her case, and see what happens to determine custody during his deployment. After his deployment the custody should revert back to him and a new case should ensue if the first wife wins. The child has rights here, she isn't his personal property to do with as he sees fit.

The deployments last a most 6 or 7 months.

option. They wouldn't even have to pull into port!

That said, the judge has come to her senses, look downthread at my UPDATE post!

If he still cant' show up after 90 days, then the hearing could be held without him.

and still no link showing must, not may. If it is must, then the only reasonable rule would be a must until he isn't deployed anymore. A 90 day stay for a 6 month deployment would be worthless to him and only serve to harm his first wife.

She must grant him a stay of minimum of 90 days.

Not since WWII anyway.

So you are arguing from a point of absurdity.

Longest we have hit in 10+ years of war is 24 months, but with 3 weeks leave in the middle to come home so really at most 12-14 months away. Right now most are 9 months.

She and her husband were granted legal right to her son's custody time with their granddaughter for the duration of the deployment to make sure that the child had continuous contact with her dad's family. They met every commitment with that child, never hesitating to drive to the state that she lived in to spend time with her. He son is out of the military and is now completing his visitations and my friend and her husband continue to spend as much time as is allowed.

This man should have the right to designate a competent family member to serve as his custodial substitute when he is on deployment. As long as he makes sure that the child is being properly cared for, being in the military should not hinder is right to be a parent to his child.

then I think that the judge is way out of line and a complaint should be filed against her. She has no business being a judge. She can hardly expect a sailor on a sub to make it to a court appearance. It is not like he didn't make sure that his child was well cared for.

it should be with single parents unless the other parent is a mess

There's a whole act dedicated to preventing this kind of thing. More ignorant judges, I guess.

A letter to the judge, maybe?

children?

The mother thinks paying her attorney is "optional" too...!!!!

Yes, I'll call out a Dem jurist, for making a bad decision. She's up for re-election in November. Bet this decision torpedoes her re-election.


http://judgepedia.org/Margaret_Murray-Scholz_Noe

Margaret Murray-Scholz Noe is a judge for the 39th Circuit Court in Lenawee County, Michigan. She was elected to this position on November 4, 2008 (effective the following January 1st), for a 6 year term that ends on January 1, 2015.[1][2]

a long time ago however many judges still operate under it sadly.

But the fact that it even got that far didn't bode well.

seconds that this idiot wacko judge did not know he was deployed, as she claims. There is no way that is possible, she was even told this by his attorneys. She's just attempting to save face and playing CYA. Hubby's an attorney and I'm a former paralegal and we know all too well how wacko too many judges can be and often are.

She may very well be in the "mothers should always have custody no matter what or how bad they are" camp, like too many people right here on this thread. The hell with what's best for the child as long as the mother wins. There are still too many judges and people like that, just as therearetoo too many woman haters also.