Appellate court lifts stay in child custody matter
MOUNT VERNON – Overseas deployment halts American court proceedings against soldiers and sailors, but Fifth District appeals judges want to see a letter from the brass before they stop litigation.
On Sept. 30 they lifted a stay that Madison County Associate Judge Duane Bailey granted to Brandon Baker of the U.S. Army in a child custody dispute.
"A bare assertion of active military service is not enough," Justice Richard Goldenhersh wrote.
Justices Thomas Welch and Stephen Spomer concurred.
"Appropriate support consists of a letter or other communication from petitioner's commanding officer outlining how his current military duty prevents him from appearing, stating that leave would be inappropriate at that time, and stating a date certain when the service member will be abler to appear," Goldenhersh wrote.
Baker and former wife Melissa Cameron married in 1999.
In 2004, he obtained a divorce and custody of both their children.
They started sharing custody in 2006, with Baker continuing as primary parent.
They agreed that in the event of deployment he would designate his mother, Kim Overmeyer, with power of attorney to exercise his custody periods.
Last year Cameron petitioned Bailey to modify custody, alleging the Army would deploy Baker soon if it hadn't already happened.
Cameron moved to join Overmeyer as a necessary party in custody modification.
Bailey held a hearing, without Baker in court.
Bailey denied the motion and stayed proceedings until Baker's return.
Bailey should have required proof, according to Goldenhersh.
He wrote that nothing in the record indicated when Baker was scheduled to return.
"The stay was granted for an indefinite period," he wrote.
The Fifth District remanded the case so Bailey can track Baker down.
Baker is represented by Amanda Verett. Cameron is represented by David Fahrenkamp.