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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 33525
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My ex husband is active duty. He has primary custody of our

Customer Question

My ex husband is active duty. He has primary custody of our children and has refused rights to them unlawfully to me. He uses his power of custody to keep me from being able to be an integral part of their lives and has said his new wife has more rights to them than me. He said he was getting out so I made plans to move back to his state, then suddenly decides to stay in so he can take the kids to another duty station.
He refuses me a copy of his family care plan and his wife's number even though she primarily has the kids.
My main question is- our divorce states I am not to contact his command. Am I allowed to since he also falls under separate UCMJ regs he's clearly abusing?
Submitted: 1 month ago.
Category: Military Law
Expert:  P. Simmons replied 1 month ago.

Hi, My name is***** am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

Expert:  P. Simmons replied 1 month ago.

I am sorry for this dilemma...but want to make sure I understand. Your divorce decree specifies that you can not contact his command? That would be unusual...but certainly possible. I want to make sure I understand the background information

Would it help to speak on the phone? I can offer that for a nominal additional fee ($5)

Customer: replied 1 month ago.
It helps me to reply by email or text so that I do not forget your advice if I have to refer back to it with my current legal counsel outside of the military.
In our separation agreement which became integrated into our divorce, it's stated that neither party should contact others place of work. I also wanted to ask if it is a possibility to prevent him from PCS sing with my children being that I know he only did it to keep them away from me once I move back, and if I have a legal right to his spouse's information because she has my children, or if I have a right to see their family care plan, and if this spouse has the right to essentially have custody of the kids should he go on a deployment or leave the area
Expert:  P. Simmons replied 1 month ago.

Thanks
Let me review...then I can provide some thoughts

Expert:  P. Simmons replied 1 month ago.

Thank you for your patience

I had the chance to review. That language is clear...there is no "exception" for reporting misconduct under UCMJ...and, frankly speaking, I am not certain what you are describing would violate UCMJ.

So if you contact his employer? You run the very real risk of being in "contempt" of this court order...and perhaps more important? I believe it is not worth the risk.

This is a civil matter...NOT a UCMJ issue. Were I the lawyer for the commander, i would advise them to NOT get involved. Is it possible that you notify the commander and they take action? Sure...but it is also possible...and I believe likely they refuse to take action.

If that happened you open yourself up to contempt charges and gained nothing.

Were I in your shoes? I would not contact the commander

This is the part of my job I don't like...when the law is not in favor of my customer. I wish I could tell you that you can contact his command without worry for this court order but I can only provide you information based on the law so that you can act on the best available information to you...I wish I had better news, but can only hope you recognize and understand my predicament and don't shoot the messenger. I'm sorry!
Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 1 month ago.
Is there no law to parental alienation of children under an active duty member's care?
Is that conduct that's unbecoming?
He is going the officer route and making it impossible to have a tangible relationship with my kids. During our separation he cut me off from money and assets immediately and threatened me into agreement.
He's emotionally abusing our children and denying me information to contact his spouse regarding their care. I asked before if she had the right to keep them if he were to be away. Also if I have right to their family care plan or her contact. Is there nothing that can be done?
Expert:  P. Simmons replied 1 month ago.

Can you tell me your spouse's rank?

Customer: replied 1 month ago.
He also dated a captain while we were married and he was a Tsgt. This man is parading as if he's upstanding and defaming me for no other purpose than to have have his ego stroked.
Expert:  P. Simmons replied 1 month ago.

Sorry...ex spouse

Customer: replied 1 month ago.
Tsgt but either had either had or will soon become an officer.
Expert:  P. Simmons replied 1 month ago.

Art 133, Conduct Unbecoming an Officer and Gentlemen will NOT apply to an enlisted member. Period.

And, again speaking frankly (I presume you want to hear a frank opinion), this is NOT a UCMJ issue. It is a civil issue for the civil court.

If your spouse is in violation of the order, he is in contempt and you can bring him to court on contempt charges...this is not something that is appropriate for a commander to engage in.

Period.

Now...having said that, is it possible you report and the commander takes action?

Certainly. That is possible.

But I would be surprised to hear that...this is something that commanders are taught (they go to school before they take command) to stay FAR away from.

If he is in violation of the order, your best recourse is to have an attorney bring him to court on contempt charges...do not give him a reason to bring you to court on contempt for violating the same order

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 1 month ago.
Can you please answer regarding my rights as their parent on family care plans and contacts? If he's an officer now, will that change things?
There's no way to stop him moving?
Expert:  P. Simmons replied 1 month ago.

The court can stop him from moving.

Again, what you are describing is NOT a UCMJ issue. Even if he is an officer? I would advise the commander to NOT engage...and I know enough military lawyers to say that my opinions are not unusual.

There is good reason for this.

There is a civil court system that is separate from the criminal system for a reason. It is NOT the duty of the military to enforce civil orders. That is the sole province of the civil courts system.

Now...there is one exception.

If there is a court orderfor monetary support? The military will ensure that is complied with. Each service has regulations that cover this.

But other than support?

I would be surprised to hear of a commander (I am speaking of a Colonel or Navy Captain in command) taking action based on the facts you are describing. Again, they are taught in school specifically NOT to engage in such cases...since the folks asking for help SHOULD be using the civil courts to solve these problems. It is not the business of the military to enforce or monitor custody orders. Period.

So if you report to the commander? YOu just violated the order with a high probability that the commander takes no action...and that would not be good (for you).

Again, I am sorry to be the one to bear bad news...I am operating under the assumption you are wanting a frank opinion.

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

5

Customer: replied 1 month ago.
Thanks. I asked about his spouse and contacts, if he's able to leave them with her should he be away and if I have access to his care plan.
Expert:  P. Simmons replied 1 month ago.

This depends on your civil order. IF the order provides for this? Then you can demand he follow the order. If the order does not provide for this? You need to go back to court and get that order modified. The court will make this modification if you can show it is good for the child (and that seems clear based on what you have said)

I want to stress that this is a civil issue...I understand your rights are being violated...I agree that is an issue. But it is not an issue for the military. His violating your rights regarding that civil order is not a UCMJ violation.

Period.

UCMJ is the military justice code...it is a criminal code. It does not extend to civil law. So your remedy lies with the civil courts.

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Expert:  P. Simmons replied 1 month ago.

Hi
Experts on this site (myself) are compensated ONLY if the customer (yourself) "rate" or "accept" the answer.

Do you have more questions regarding this?

Thanks for your understanding
Phil

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