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Military mom fights for custody under new law
Browse: 2271       Date:01-02-2013     

An infatuation with jets led Danelle Collins to join the Air National Guard.
She never dreamed, however, that her childhood desire to join the military would come into play during a divorce and custody battle years later.
Danelle, 33, enlisted in the Air National Guard in her home state of North Dakota in April 2000. She moved to Nebraska a few months later, and since she hadn't attended basic training yet, she was discharged from the Guard in North Dakota and allowed to re-enlist in Nebraska in Oc-tober 2000.
While in Nebraska, she met Colby Collins. The couple married in 2003 and had two children, Callie, now 7, and Tyler, who's 4.
Danelle filed for divorce in 2010. According to court documents filed by Danelle's attorney, Bob Creager, Danelle and Colby were able to agree on issues relating to property settlement, child support and a parenting plan. However, they couldn't agree on custody of the children, who were living with their mother at the time, and a divorce trial took place in Hall County District Court in March 2012.
A decree of dissolution was issued by Hall County Judge James Livingston regarding the Collins' divorce. The judge cited Nebraska Statute 42-364 in his decision, stating that the relationship of the children to each parent, their desires and wishes, along with the gen-eral health, welfare and social behavior of the children, and any credible evidence of abuse was considered in the custody decision.
The judge found both parents to be fit and proper parents. However, he ruled that the family unit wasn't typical "solely from the fact of the plaintiff's military career," the judge's decree said.
Danelle was up for re-enlistment in October. She could have chosen another six-year term but decided instead, after speaking to her superiors, to re-enlist for one year while her custody dispute is ongoing.
"I'm an asset to my unit," she said. "I could have re-enlisted for four or six more years, but I chose one year pending this situation. My passion about my children is first and foremost."
"My passion about the military has been there since I was a child," she said. "At 20 years of service, I'll get full retirement."
Livingston wrote in his decree that Danelle's military service was a source of a "great deal of stress" in the marriage. According to the decree, Danelle had lied to her husband and her mother about her military re-enlistment in 2006, and according to Danelle, Colby wasn't supportive of her military career.
In addition, Danelle was, at the time of the trial, living in Grand Island and working in Kearney. She has since moved to Kearney, where she was dating her employer. She also indicated she planned to start her own business. Colby was living in the family home and worked from 8 a.m. to 5 p.m. at the time of the trial, according to the decree.
Danelle is now a technical sergeant in the Nebraska National Guard with the 155th Air Refueling Station in Lincoln. She has drills one weekend a month and two weeks of training per year. There is always a chance she could be deployed, but she said her unit's members are forced to deploy.
According to the appellate brief filed by Creager, Danelle has been deployed three times since her children's births. In June 2006, she was in Turkey for two weeks, and in August 2007, she was in Guam for two weeks. During both of those times, her daughter stayed with her parents. The third deployment was for 42 days in October 2009. During that time, the children stayed with their father, and a family friend helped care for them as well.
The judge also found inconsistencies in Danelle's testimony about how often the younger of her children was in day care and the use of a teenage baby sitter to help with the children.
He ruled that, while recognizing Danelle's freedom to pursue her military career, the uncertainty of deployment would make it difficult for her to provide a stable home for the children. He coupled that with her inten-tion of starting a new business. As a result, Livingston determined Colby could provide a more stable environment for the children.
Danelle was ordered to pay child support. She has visitation rights and sees the children every other weekend and on Tuesdays and Thursdays after school.
The decision is currently being appealed. Creager filed an appeal in November, and Colby's attorney filed a motion for summary affirmance, which maintains the questions Creager presented for review are insubstantial and don't require further argument. Creager recently filed a response to the motion and is waiting to hear whether the Nebraska Court of Appeals will dismiss his appeal request or accept it.
The basis for Creager's appeal is Nebraska Statute 43-2929.01, which states that a military parent's military "membership, mobilization, deployment, absence, reloc-tion or failure to comply with custody, parenting time, visitation or other access orders because of military duty shall not, by itself, be sufficient to justify an order or modification of an order involving custody, parenting time, visitation or other access."
Creager's brief states the trial court "erred in failing to make adequate findings of fact that the decision to award custody to Colby was not based solely on (Danelle's) military service."
According to the brief, Creager argued that the trial court's conclusion that Danelle's military service creates future instability wasn't supported by evidence and was in violation of the state statute.
The law Creager cites in his appellate brief became a law in August 2011. Until the filing of Danelle's brief, no cases had been brought to the Nebraska Court of Appeals under the new law. The law, 43-2929.01, wasn't referenced in Livingston's decree, which was filed on April 9, 2012.
According to Creager's brief, assuming Danelle's military service created potential instability for the children, such service can't be the sole basis for a custody order. He's asking for clarification or direction from the appeals court as to how the provision in the new law should be applied.
"That being said, we can find no reference in the decree to the trial court's consideration of 43-2929.01 or how the court applied it to the facts of this case, if it did," Creager wrote.
Danelle did make a motion for a new trial following Livingston's decision. However, according to Creager's brief, the trial court stated the custody decision wasn't made solely on Danelle's military service but didn't disclose what other factors were considered.
"Without making specific findings of fact as to the other considerations, we are left to conjecture what those factors were," Creager wrote.
Danelle said she has a mandated family care plan through the military addressing who would care for her children if she was deployed. She also has the support of her superior officers who have talked to her about the effect her custody case could have on future filings by other military families.
"I have zero problems with joint custody," Danelle said. "Colby is still their father. He should still see them. I don't have hatred for him. Our marriage just didn't work."
Her voice broke a little as she talked about being the parent who, during her marriage, provided most of the day-to-day care.
"It's hard to explain why things have changed," she said of talking to her kids. "I'm the one who took them to the doctor, to get their haircuts and enroll them in school. I'm the one who rocked them to sleep and stayed with them when they were sick. How can I explain to them why I can't do that now because I wear a uniform and do what's right for our country when I don't understand it?"

Source: Find Law