Soldiers Face Losses in Battle and on the Home Front

By Mark Hoerrner

Spc. Joe McNeilly knew that when he joined the National Guard in 2003, he would have to make certain sacrifices. He would be expected to perform with the highest moral caliber in sub-human conditions in faraway lands. He would endure physical challenges that many Americans couldn’t handle. He would be asked to potentially make the greatest sacrifice of all – the giving of his life to protect freedom. He never expected he would have to sacrifice his only son.

After being called to serve 15 months in Iraq, McNeilly, 33, came home to find out that a family court judge had considered his national service "abandonment" of his 10-year-old son. "You want to make a soldier cry," McNeilly said, "then take away his son. It’s devastating."

McNeilly left for Iraq sharing joint custody of his son with former girlfriend Holly Erb. The couple had held joint custody for five years, but when he was called up for Iraq, McNeilly gave Erb temporary full custody. While McNeilly was at war, Erb convinced a court to give her permanent custody.

The case, while unusual, is just one in a multitude of custody cases that reservists are facing. Judge Advocate General Capt. John Wojcik, who serves the Michigan National Guard, said he knows of more than 20 custody cases that have been filed as a result of guardsmen being called to active duty.

Erb’s attorney has since cited that his service had nothing to do with the custody move but rather McNeilly’s poor parenting skills. As proof, she offered two postcards McNeilly had sent his son depicting soldiers training with firearms. Erb claimed the postcards frightened the boy, and thus McNeilly was not taking his son’s best interests under consideration. Further, Erb claimed that her husband had told his son about various ways to kill people and that he wrote "the next time someone touches you and leaves bruises on you – I’ll be ready." McNeilly claims the statements were taken out of context and that the postcards simply explained to the then 8-year-old boy what his father was doing in the military.

The child services referee who made the case for custody also noted that Erb was the day-to-day caretaker of the child while McNeilly was in Iraq. So far, however, Erb has produced no additional evidence that McNeilly has been an irresponsible parent. Others, however, don’t see Erb’s actions as simply putting her son’s welfare in the forefront. For example, the new arrangement requires McNeilly to pay Erb $525 a month in child support. Prior to leaving for Iraq, the custody agreement did not include child support. "He would still have his son if he hadn't been deployed," said Maj. Dawn Dancer, public affairs officer for the Michigan National Guard. McNeilly is working to appeal the court’s decision and regain custody of his son.

McNeilly’s case has prompted legislators in his home state of Michigan to introduce a bill to address the issue. Rep. Rick Jones, R-Grand Ledge, entered a bill into consideration that would prevent family courts from using military service absences as ammunition in custody proceedings. Soldiers serving our country at the risk of losing their lives should not have to risk losing their rights as parents.