TEANECK, N.J. — During the 10 months she was deployed in Iraq, Leydi Mendoza, a 22-year-old specialist in the New Jersey National Guard, did everything she could think of to ease her longing for the year-old daughter she had left back home. ...This case is only news because the mom is losing out. Dads lose out in cases like this all the time.
But since her return, Mr. Llares has allowed Ms. Mendoza only a few brief visits with Elizabeth. ...
Legal experts caution that regardless of legislation the task of determining the best interests of the child is likely to fall to a family court judge. ...
Specialist Mendoza argued with Mr. Llares, trying to get more time with their daughter, and when she threatened to have him fired from his job at a Y.M.C.A., he filed a temporary restraining order, which a judge later dropped.
The problem with the legislation is that it requires the family court judge to make a decision based on the Best Interest Of The Child (BIOTCH). But the judge is incapable of doing that, so it becomes a legal battle of who can get whom fired, who can get the better restraining order, and who is better liked by the court shrink.
Legislation could address this problem by abolishing the BIOTCH. A soldier should not have to turn authority over her child to the whim of a family court judge when she gets sent overseas.
Update: The judge was apparently influenced by the fear of an unfavorable NY Times story, and granted the soldier some visitation today. Thanks to a commenter for the link.
Update: A reader writes:
This woman abandoned her newborn infant to go overseas for 10 months? She is unfit to have custody of a child!Now the NY Times has an editorial on the issue:
She had a choice. The draft was abolished, in case you hadn't heard. Any military obligation was one she freely chose. Next, she chose to have a baby without a husband, which was a bad choice in itself, that should have called her fitness into question.
Even with all that, she had the choice to apply for a hardship excuse not to deploy overseas. Failing that, she had the choice simply not to report for her deployment, i.e., the choice to desert her unit and remain AWOL, if necessary.
Yes, there would be consequences, but so what? Her child needed to be fed and diapered 6 times a day, and the obligations of motherhood surpass any other obligation she may have undertaken.
Determinations about what is best for a child are complicated and dependent on personal circumstances. Children sometimes become pawns when parents split up, and military families are no exception. But it would be a terrible injustice if a soldier were to lose custody simply because he or she served the nation in wartime. ... It would be intolerable if bias in parts of society against working mothers extended to those who leave their children to wear their nation’s uniform.Of course these family court judges never really make any determinations about what is best for a child. The phrase "complicated and dependent on personal circumstances" is just a euphemism for applying their personal prejudices.