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Custody hearing goes on despite deployment

CHARLOTTE, N.C. — While Spc. Mary Hollingsworth dispensed weapons at Camp Anaconda outside Balad, Iraq, there was another battle waiting for her at home.

During her deployment, the father of her 5-year-old son filed legal papers trying to get custody. Victor Diaz Jr. portrayed Hollingsworth as more interested in being a soldier than taking care of her son.

Hollingsworth shipped home from her National Guard duties a month early to appear in court, and she has custody — for now.

“I shouldn’t have had to leave before they did,” she said, referring to her unit. “I had to. I mean, we’re talking about my son.”

While federal law protects deployed soldiers from civil proceedings such as bankruptcy and evictions, child custody isn’t mentioned. Judges often delay debt collections and similar cases, but child visitation and custody are left out.

Unlike lease payments, a child “can’t be put into a state of suspended animation” while a parent is deployed, said Mark Sullivan, a Raleigh lawyer and author of “The Judges’ Guide to the Servicemembers Civil Relief Act.”

Judges find it nearly impossible to support delaying a custody case under the federal statute, Sullivan said.

Lawmakers in North Carolina and other states have drafted bills to ease the burden on National Guard soldiers because judges are compelling soldiers such as Hollingsworth to rush home. Military commanders are worried the court hearings could endanger battlefield readiness.

In Hollingsworth’s case, her son’s father petitioned a judge in Gaston County for custody last July when she was in Iraq. The boy was living with Hollingsworth’s mother, and Diaz argued a “substantial change of circumstance” allowed him to claim custody.

Judge Dennis Redwing granted Diaz eight weeks visitation and scheduled a custody hearing, and Hollingsworth asked her commanders to help her get home.

“Obviously, everyone is ignoring the [Servicemembers Civil Relief Act],” Capt. Cale Moody wrote in an e-mail to Hollingsworth’s lawyers in August. “Therefore, she needs to return home as soon as possible to take care of this situation. However, we are somewhat busy fighting a war and in order to send Hollingsworth home we need proof of a hard date of when the custody hearing will be.”

Redwing said he had no choice but to schedule the hearing.

“I don’t think it was my purview to evoke the SCRA,” he said, adding that he didn’t order Hollingsworth to come home. “No one’s rights were trampled on.”

At the custody hearing in October, Redwing ordered mediation to resolve visitation arrangements, but did not hand custody to Diaz.

Larry Langson, a lawyer for Hollingsworth, said the outcome would have been different had the boy’s mother stayed with her unit in Iraq.

“If she didn’t come back, she would have lost custody,” he said.

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