Soldier’s Service Leads to a Custody Battle at Home

By DAVID KOCIENIEWSKI/New York Times

August 31, 2009

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.

A picture taken on her baby Elizabeth’s first Christmas was tucked inside the camouflage patrol cap she wore while guarding prisoners at Camp Cropper in Baghdad. Several times a week, she would phone her former companion, Daniel Llares, who was caring for their daughter, aching as she heard her little girl’s vocabulary grow from babble to phrases like “I miss you” and “I love you.”

And on the flight back in May, Specialist Mendoza fought back the guilt she felt about being half a world away for so many formative moments by telling herself that one day Elizabeth would be proud of her service.

But since her return, Mr. Llares has allowed Ms. Mendoza only a few brief visits with Elizabeth. Despite a written family care plan they had worked out with military officials outlining shared custody upon her return, Mr. Llares now believes it is too disruptive for the baby to spend more than a few hours at a time with “a mother she doesn’t really know or recognize that well,” said his lawyer, Amy Lefkowitz.

After months of arguments, an exchange of legal papers and a restraining order, Specialist Mendoza and Mr. Llares each are demanding full custody of Elizabeth, and are scheduled to appear at a court proceeding Tuesday to determine her fate.

“My daughter needs her mother,” Specialist Mendoza said in an interview last week at the National Guard Armory here in Teaneck. “I left my daughter, and they told me that when I got back, she’d be with me again. But now, it’s like I’m on my own.”

Custody disputes involving returning members of the service have long been an unpleasant fact of military life, but the increasing number of women involved in combat overseas has brought new wrinkles. The Pentagon does not keep statistics on such custody disputes, but military family counselors said they knew of at least five recent situations around the country like the struggle over Elizabeth, in which a mother who served overseas is fighting for more access to her child. Some advocates say an unspoken bias against mothers who leave their young children has heightened both legal barriers and social stigma when these women try to resume their role as active parents.

Advocates for military families are pushing to update custody laws because the Soldiers’ and Sailors’ Civil Relief Act protects service members from losing their jobs or their homes, but not from losing access to their children. Several states have proposed laws to protect veterans’ custody rights, and Congress has considered legislation — some bills that would forbid judges from considering deployment or future deployment in determining custody, others that would automatically end a temporary custody arrangement once a service member returns — but military officials have generally opposed them.

So soldiers like Specialist Mendoza return home to find themselves in a financially and emotionally draining limbo, asking the courts to uphold a family care plan that is formulated, but not enforced, by the armed services.

“We are asking these women to sacrifice for their country, and we need them,” said Lory Manning, a retired Navy captain who advocates for female service members. “But there’s not enough being done to help support them and their families when they get home.”

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. Such determinations are especially difficult in cases involving a child as young as Elizabeth, who was not yet 2 when her mother returned from Iraq.

“A child who is 10, you can tell them the parent’s going overseas, stay in touch with Web cams and e-mail and keep the parent involved in a child’s life until they return,” said Ms. Lefkowitz, Mr. Llares’s lawyer. “But someone of Elizabeth’s tender age doesn’t understand.”

After Elizabeth was born in June 2007, Specialist Mendoza and Mr. Llares lived with the baby at his parents’ home in Wayne, N.J. When it became clear that Ms. Mendoza would be sent overseas, she agonized over whether to leave her daughter.

“I wanted Elizabeth to grow up and be proud that her mother had served her country,” said Specialist Mendoza, who is attending Montclair State University in Montclair, N.J., to be a math teacher. “And we needed the health care and the military benefits and the help paying for my school.”

Specialist Mendoza, whose family lives out of state, said she ended her relationship with Mr. Llares before she and other members of the 3rd Battalion of the 112th Field Artillery unit left for Texas in July 2008, bound for Iraq. Despite the breakup, the couple agreed that she would help Mr. Llares and his parents pay for Elizabeth’s needs while overseas and assume joint custody once she returned home.

But things quickly fell apart. The first time Elizabeth was reunited with her mother, she burst into tears. Specialist Mendoza cried, too.

Mr. Llares, also 22, declined to be interviewed, but his lawyer acknowledged that he restricted Specialist Mendoza’s visits with Elizabeth because he was concerned that the abrupt change would frighten and confuse her. “He wants her to have a close relationship with her mother,” Ms. Lefkowitz said, “but he wants an appropriate transition.”

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. Specialist Mendoza and Master Sgt. Minnie Hiller-Cousins, the counselor who helped Specialist Mendoza draft her family care plan, asked the military’s Judge Advocate General’s Corps to provide legal help, to no avail. Specialist Mendoza said she hired a lawyer and had spent $6,000 on legal fees so far.

Ms. Lefkowitz said that Mr. Llares should be granted primary custody, citing his devotion to Elizabeth while her mother was overseas. She also said that Mr. Llares worried that Specialist Mendoza could be deployed overseas again during the final two years of her National Guard duty.

But Specialist Mendoza said that if the military once again asked her to choose between her daughter and her country, she would not go.

“I’d try to get honorably discharged,” she said. “But I wouldn’t go through that again. And I wouldn’t put Elizabeth through that again.”