Oct. 23, 2007 -- Just before Molly Moriarty left Florida for Kuwait in December 2005 on deployment for the Navy, she sat her two sons, 9-year-old Patrick and 11-year-old Alistair, down for a talk. "I told them the president needs Mommy and her fellow sailors to do some work for him and it's kind of important, but everything is going to be OK," said Moriarty.
But within three weeks, Moriarty found herself facing another war, this one on the home front. During her absence, Moriarty's ex-husband had filed for full custody and had received a court order to take the boys.
"I talked to my sons on the phone -- hat was the worst part. They were crying and saying why is Daddy doing this to us. I said Mommy is going to go home and fix this."
Moriarty isn't the only military mom facing this battle. When Eva Crouch-Slusher of Lawrenceburg, Ky., finished her active duty tour, she called her ex-husband. "I said I'm coming to get Sara tomorrow. Make sure you have all her stuff packed. And he said, Make sure you have a court order. I was stunned."
And there are others, lots of others. Cpl. Levi Bradley fought for custody of his 3-year-old son while stationed in Iraq. Spc. Mary Hollingsworth of North Carolina had to return home to fight her ex for custody of their 5-year-old son. And Spc. Lisa Hayes of New Hampshire went AWOL, absent without leave, when she returned home to fight for custody of her 7-year-old daughter, Brystal.
There are about 140,000 single parents in the active and reserve military. Before a deployment, service personnel are required to work out temporary parenting arrangements with an ex-spouse or family member through a written family care plan. But all too often, the stateside caregiver goes to court requesting a modification of a custody arrangement, and the military parent isn't around to fight the order. That leaves military moms and dads feeling as if their deployment -- their absence -- counts against them in court. "You should not have to be in downtown Baghdad worrying about your children," said Moriarty.
But Judge Susan Carbon, president of the National Council of Juvenile and Family Court Judges, argues that judges must make a decision based on the best interests of the child. "These are really hard calls to make. It's extremely disruptive on all ends. Here's a parent serving their country, and they come back and expect to resume where they left off. ... Just because you have an agreement that says you get to get a child back it may not be the best thing for the child."
Judges weigh a number of factors when deciding custody issues said Carbon, including how much of a relationship the parent has been able -- and willing -- to maintain with the child through e-mail, letters and cards, and how involved they are in their lives. "When that dad or mom returns, that child may no longer feel that he's got a relationship with them and returning them to that parent may mean disrupting the child's life, moving to a different school district or leaving friends."
The Service Member's Civil Relief Act is a federal law that allows service members to delay legal proceedings during military activation. The law generally works well for things like credit issues. For instance, a bank can't begin foreclosure proceedings. But in custody disputes, many parents say, family court judges simply ignore it.
Starleen Bradley said that's what happened to her son. Cpl. Levi Bradley couldn't get leave from Iraq to come home and fight his ex-wife, Amber, for custody of 4-year-old Tyler. "The judge just kept saying the SCRA didn't qualify for custody," said Bradley.
In Molly Moriarty's case, the Navy allowed her to fly back home to fight the court order. She enlisted the help of the Red Cross, judge advocate general attorneys and her own civilian attorney. "People think, Oh, you're a bad mom. You abandoned your kids because you wanted to go and play GI Jane. It was horrible. I signed up and took an oath of honor, loyalty and commitment. I wasn't going to dishonor my country by quitting. But then I would think, Oh my poor kids, and that mommy bear thing kicks in and I have just never felt so helpless," said Moriarty.
For months, she traveled back and forth to court, tracked down paperwork and researched some of the legal issues on her own to save money. Many sleepless nights and thousands of dollars later -- she was finally awarded primary custody of her boys again.
Others have not been so fortunate, said Michael Robinson, a California lobbyist who has worked to strengthen protections for military personnel in custody disputes. "Service men and women are at serious disadvantages in a lot of issues affecting orders in family court -- custody orders in particular."
California, Michigan, Kentucky, Florida, Arizona, Oklahoma, Ohio and North Carolina have all passed legislation that would ensure whatever custodial arrangement was in place before deployment would remain until the service member returns from active duty. But more protection is needed, according to Robinson.
Rep. Mike Turner, R-Ohio, agrees. He has introduced an amendment to the National Defense Authorization Act that would "prevent family courts from using service members' time away from home against them in custody battles." The measure passed unanimously in the House but got bogged down in the Senate with some members arguing that it would usurp judges' authority. "Each judge now gets to make their own determination, and that's why we have this situation we're in," said Turner.
The House and the Senate have moved the amendment into conference, and Turner said he won't give up.
The Department of Defense is keeping a close watch on the situation as well. In a statement to ABC NEWS.com the Defense Department said, "Any service member who is deployed and experiences family problems back home is subject to psychological stress that could decrease effectiveness on the job and undermine military readiness." Defense officials believe "education about, and enforcement of existing law may be the most effective way to protect mobilized custodial care givers."
It took Eva Crouch two years and $25,000 to finally regain custody of her daughter, Sara. The military mom was so upset at what happened to her that she helped get legislation passed in Kentucky to protect other service members.
And she remains angry at the well-meaning people who told her she should choose between her child and her country. Crouch explained that she joined the military at 17. "There was no war going on. We weren't thinking about that stuff." Still, the military gave her a job and a paycheck and paid for her education. And she was grateful. "I thought, you know, they held up their end of the bargain. Just because there's a war on I'm supposed to say, well, I have a kid forget it. You have to instill in your kids a sense of commitment, honor, duty and loyalty. There's no choice. I couldn't make a choice, and I shouldn't have to."
That's a sentiment Molly Moriarty understands.
Moriarty said her family is still feeling the effects of her stateside custody battle months later. "The boys don't like me to go away at all. And when I do I have to tell them where I'm going, when I'm coming back the exact minute and they always want to come."
Like Eva Crouch, Moriarty also pushed to pass legislation in her state -- Florida -- to protect active service members from being penalized in custody cases. Even though she is now protected by the very legislation she helped to pass, Moriarty said she worries every day about the future.
"Going over doesn't scare me. ... Going to Baghdad doesn't scare me. What scares me is if their dad is going to try this again," Moriarty said.